Request By:
Wade McNabb, # 186567
Chief Randy Sergent
Thomas L. MacDonald
Barbara Teague, Acting Director
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Flemingsburg Police Department violated the Open Records Act in denying Wade McNabb's October 30, 2007, request for "all records, case notes, interview manuscripts, and any other materials related to a case investigated by this department on January 29, 1997, against an alleged perpetrator with the initials O. G. . . . of first degree sexual abuse [of an individual identified by name, age, and mother's name]." 1 Although the Flemingsburg Police Department cannot produce for inspection records that apparently no longer exist, the failure of the department to retain a felony investigation case file for eighty years, as required by the Local Government General Records Schedule , may warrant review by the Department for Libraries and Archives under authority of Chapter 171 of the Kentucky Revised Statutes.
By letter dated November 5, 2007, Chief Randy Sergent of the Flemingsburg Police Department notified Mr. McNabb that his request did not "appear to be an official request," but indicated that he would be happy to respond if Mr. McNabb "would . . . appear in person 2 or send a repetitive [sic] . . . ." Shortly thereafter, Mr. McNabb initiated this appeal.
In supplemental correspondence directed to this office following commencement of Mr. McNabb's appeal, Flemingsburg City Attorney Thomas L. MacDonald amplified on the city's position. He explained:
The City of Flemingsburg retains records for a period of seven (7) years. This request relates to activity in 1997, or ten (10) years ago. Chief Sergent has made a search and found no records related to this particular case. However, in the interest of full disclosure we will say that as a practice during the period in question, sexual abuse-type cases would have been referred to KSP since they had a person specifically designated and trained in that area (Sharon Caudill). Basically, we cannot provide records we no longer have.
Alternatively, Mr. MacDonald asserted that had responsive records been located the city "would have objected to their release under . . . KRS 61.878(1)(a) because they contained information of a personal nature involving alleged sexual abuse of a then-minor," "pursuant to KRS 61.878(1)(h) since such an offense, if it occurred, would have been referred to the Commonwealth's Attorney [whose litigation records are permanently exempt under the cited provision]," and "under KRS 61.878(1)(i) and (j) . . . as any initial reports that might have been made . . . involved only preliminary drafts, notes, and recommendations." 3 Finally, Mr. MacDonald argued that "Mr. McNabb made no payment to cover costs of copying ($ 0.05 per page) and the postage required to mail same, had there been anything to copy and mail. " 4
It is the decision of this office that the Flemingsburg Police Department's original response to Mr. McNabb's request was violative of the provisions of the Open Records Act, and that its supplemental response raises serious records management issues. To begin, we find that regardless of whether Mr. McNabb's request was or was not "an official request," and we believe it was, the Flemingsburg Police Department was statutorily obligated to respond to that request by conducting an adequate search, and, upon determining that no responsive records exist, to so notify Mr. McNabb on or before the expiration of the three business day response time provided for by KRS 61.880(1). With reference to the sufficiency of a records request, this office noted in 99-ORD-148 that even if a request "is not identified as an open records request submitted under authority of Chapter 61 of the Kentucky Revised Statutes, it satisfie[s] the requirements of KRS 61.872(2), relative to written application, [as long] as it describe[s] the records to be inspected, and [is] signed by the applicant, with his name printed legibly thereon." 99-ORD-148, p. 2. When such a request is tendered, the statutory requirements codified at KRS 61.880(1) are triggered and an agency is obligated to respond in a proper and timely fashion. "The duty to properly respond does not place an undue burden upon public servants," the Court of Appeals has observed, "[t]he agency may deny the request, or may ask for a more specific request, or may even tell the person asking for the documents that another custodian has the records, but the agency is required to promptly respond to the request in some fashion." George William Sykes v. James Kemper , 2000-CA-000714-MR (Ky. App. 3/30/01), petition for rehearing denied July 20, 2001 (unpublished opinion) . 5
Although the Flemingsburg Police Department issued a timely written response, that response did not otherwise satisfy the requirements set forth at KRS 61.880(1), which provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In construing KRS 61.880(1), the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, 926 S.W.2d 856, 857 (Ky. App. 1996). As noted above, that response must be in writing and issued within three business days of receipt of the request. "A limited and perfunctory response," the court concluded, does not "even remotely compl[y] with the requirements of the Act . . . ." Id . The Flemingsburg Police Department violated KRS 61.880(1) in dismissing Mr. McNabb's request as not "an official request."
Mr. McNabb's October 30 letter satisfied the minimum requirements of a properly framed open records request found at KRS 61.872(2) insofar as it was in writing, described the records to be inspected, was signed by the applicant, and contained his name printed legibly. In addition, the request directly referenced the Open Records Act and Chapter 61 of the Kentucky Revised Statutes in four places. This being the case, and consistent with the authorities set forth above, the Flemingsburg Police Department was statutorily obligated to properly respond to the request. See 01-ORD-168.
The Flemingsburg Police Department's belated denial of Mr. McNabb's request is premised on the nonexistence of the felony investigative case file relating to the incident described in that request. Mr. MacDonald advises that "[t]he City of Flemingsburg retains records for a period of seven years." He does not correlate this retention period to any records series appearing in the Local Government General Records Retention Schedule developed by the Kentucky Archives and Records Commission pursuant to KRS 171.530, and promulgated into regulation at 725 KAR 1:061. Our review of that schedule suggests that the records to which Mr. McNabb requested access, assuming they once existed, fell within the parameters of records series L4662, Felony Investigation Case File. (Copy enclosed. ) 6 The retention period for this records series is eighty years. Whatever the application of KRS 61.878(1)(a), (h), (i), and (j) to the records while they existed, the Flemingsburg Police Department obviously cannot furnish Mr. McNabb with records that no longer exist. See, e.g., OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-112; 94-ORD-65; 96-ORD-41; 01-ORD-11; 01-ORD-168. Our decision in an open records appeal is generally limited to two questions: Whether the public agency has in its possession the document requested, and if it does, whether the document is subject to public inspection. The Flemingsburg Police Department's failure to produce for inspection records that have apparently been destroyed therefore does not constitute a substantive violation of the Open Records Act.
Nevertheless, the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, relating to the management of public records. KRS 61.8715 now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740]." The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id. As noted, the Local Government General Records Retention Schedule indicates that the retention period for felony investigation case files is eighty years. The record before us demonstrates that records responsive to Mr. McNabb's request were destroyed seven years after their creation pursuant to an unspecified policy of the City of Flemingsburg. In light of this discrepancy, we are obliged to refer this matter to the Department for Libraries and Archives for further inquiry as that agency deems warranted.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 We omit these personal identifiers in deference to the victim's privacy interests.
2 The Open Records Act contains no requirement that a requester appear in person. This suggestion therefore finds no support in existing legal authority and is, at best, disingenuous given Mr. McNabb's status and consequent confinement at Little Sandy Correctional Complex.
3 We will not unnecessarily lengthen this decision with an analysis of the merits of each of these arguments except to note that KRS 61.878(1)(a), (i), and (j) have never been construed to authorize blanket nondisclosure of a criminal investigation case file. Moreover, KRS 61.878(1)(h) applies to criminal investigations and criminal litigation records "maintained by county attorneys or Commonwealth's Attorney." Criminal investigation records maintained by law enforcement agencies such as the Flemingsburg Police Department do not enjoy permanent exemption even if the records maintained by the Department are identical to the records maintained by the county or Commonwealth's Attorney. 02-ORD-112.
4 Although KRS 61.874(1) permits a public agency to require advance payment of the prescribed copying fee, including postage where appropriate, the Act does not contemplate the simultaneous submission of fees and postage with the records request. Mr. McNabb cannot be faulted for failing to include fees and postage with his original request in view of the fact that he had no idea how many responsive records might be located or what the associated postage costs might be.
5 Although George William Sykes v. James Kemper is an unpublished opinion that, in accordance with Rules of Civil Procedure (CR) 76.28(4)(c), cannot be cited or used as authority in any other case in any court of this state, it is indicative of the view the courts might adopt in a later published opinion relative to the duties of public agencies upon receipt of an open records request not clearly identified as such.
6 This conclusion is based on Mr. McNabb's description of the incident giving rise to the investigation as "the first degree sexual abuse" of a minor. Had the investigation related to an allegation of sexual abuse in the second or third degree, the records relating thereto would fall within the parameters of records series L4663, Investigation other than Felonies File, (copy enclosed) . These offenses are misdemeanors and records relating thereto are subject to a five year retention period.