Request By:
Shelburn Ray Childers
Terry R. Keelin
C. Phillip Hedrick
Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Boyd County Sheriff's Department relative to Shelburn Ray Childers' October 29, 2007, request for copies of police reports, dispatch logs, and a tape recording of an April 13, 2007, incident at his house, involving three deputies of the Department visiting his home to obtain a police issued tape recorder that was allegedly used to illegally record conversations between his wife and her mother violated the Open Records Act. For the reasons that follow, we find that the Department's denial of access to a public record without citing an exception authorizing withholding access to the record and a brief explanation as to how the exception applied to the record withheld was a violation of KRS 61.880(1) and the failure to affirmatively advise Mr. Childers as to whether other requested records existed was a violation of the Open Records Act.
By letter dated November 2, 2007, Terry R. Keelin, Boyd County Sheriff, responded to Mr. Childers' request. In relevant part, Sheriff Keelin advised Mr. Childers that his officer did complete a non-criminal report which the sheriff had reviewed and accepted, but because the report was non-criminal it was not subject to the Open Records Act and he was not required to provide him with a copy. He further advised that the digital tape recorder had been brought to his office due to the insinuation by Brenda Childers that it had been used to record her private conversations and, after inspection by him and Deputy Carl Hall, found no conversations were recorded in any of its folders.
KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute 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.
(Emphasis added.) The failure of the Department to cite, in its response to Mr. Childers, the specific statute which authorized the withholding of the requested report along with a brief explanation of how the cited exception applied to the records withheld constituted a violation of the Open Records Act. Procedural requirements are not mere formalities but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125.
Moreover, the Department argues that because the report was non-criminal it was not subject to the Open Records Act. We do not agree. KRS 61.870(2) defines the term public record as "all books, papers, maps, photographs, cards, tapes, disks, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency ." (Emphasis added.) Since, the report was prepared by an officer of the Department and reviewed and accepted by the sheriff, it qualifies as a public record in the possession of a public agency and is subject to the Open Records Act. As noted above, having failed to set forth a statutory basis for withholding the report, it should be made available for Mr. Childers' inspection.
Finally, addressing the request for dispatch logs and a tape recording of the April 13, 2007, incident, the Department's response does not advise as to whether these records exist. In addressing the obligations of a public agency when denying access to public records for this reason, the Attorney General has observed:
[A]n agency's inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [other citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient .
02-ORD-144, p. 3 (emphasis added); 04-ORD-205. Accordingly, this office has consistently recognized that a response by a public agency violates KRS 61.880(1), " if it fails to advise the requesting party whether the requested record exists ," with the necessary implication being that a public agency discharges its duty under the Open Records Act by affirmatively so indicating. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3 (emphasis added); 04-ORD-046, p. 4. On multiple occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4. If no dispatch logs or a tape recording of the April 13, 2007, incident exist, the Department should affirmatively advise Mr. Childers of that fact.
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.