Request By:
Terrance E. Miles, # 151766 D-3
Alicia M. Smiley
William P. O'Brien
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Louisville Metro Police Department violated the Kentucky Open Records Act in the disposition of Terrance E. Miles' request for "an audio copy of all 911 calls made in Jefferson County on February 27, 2005, between 3:30 a.m. and 3:55 a.m." In addition, Mr. Miles requested " all calls made to the Louisville Metro Police Department's 'Tip Line' 574-LMPD made on February 27, 2005 and February 28, 2005." By letter dated July 29, 2008, Mr. Miles initiated this appeal from the failure of the LMPD to respond upon receipt of his written request; however, Alicia M. Smiley, Public Information Specialist, responded on behalf of the LMPD upon receiving notification of Mr. Miles' appeal, initially advising that Mr. Miles' request dated July 14, 2008, was not received until July 31, 2008. As further observed by Ms. Smiley, the LMPD issued a timely written response on August 4, 2008, a copy of which is attached to her August 6, 2008, letter, in which the LMPD advised Mr. Miles that MetroSafe Communications does "not retain any 9-1-1 calls or other related records, i.e., CAD reports, for more than a two year period." Consequently, any 911 calls "made during the time frame . . . requested no longer exist. All callers to the 574-LMPD tip line are guaranteed anonymity and therefore are not recorded." In other words, no such records currently exist because none were created to begin with. Based upon the foregoing, Ms. Smiley requests on behalf of the LMPD "that Mr. Miles' appeal be dismissed as having no merit."
As a threshold matter, this office has consistently observed the following when confronted with factual disputes of the nature presented:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully, any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-061, p. 2, citing OAG 89-81, p. 3; See 04-ORD-036; 03-ORD-204. As in the cited Open Records decisions, the record on appeal does not contain sufficient evidence concerning the actual delivery and receipt of Mr. Miles' requests for this office to conclusively resolve the related factual dispute. Absent objective proof to the contrary, this office does not have any reason to question the veracity of Ms. Smiley, and therefore finds no violation in this regard. In sum, the role of the Attorney General in adjudicating an Open Records dispute is narrowly defined by KRS 61.880(2); this office is without authority to deviate from that statutory mandate.
In our view, the analysis contained in 05-ORD-033 is controlling on the facts presented; a copy of that decision is attached hereto and incorporated by reference. Although 05-ORD-033 involved a different agency and records retention schedule, the record at issue was a recording of a 911 call and the reasoning found at pp. 4-6 is equally applicable. As long recognized by the Attorney General, a public agency cannot produce for inspection or copying nonexistent records or those which it does not possess. Likewise, this office has consistently held that the Attorney General "cannot order an agency to create records, or declare its failure to do so a subversion of the intent of the Open Records Act. " 1 96-ORD-139, p. 2. To clarify, the right to inspect attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. A public agency's response 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 indicating that no such records exist as the LMPD has asserted here. In general, it is not "incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute." 2 01-ORD-136, p. 2. As previously indicated, KRS 61.880(2)(a) narrowly defines the role of the Attorney General in resolving disputes concerning access to public records.
That being said, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the records being sought when KRS 61.8715 took effect on July 15, 1994. In order to satisfy the burden of proof imposed by KRS 61.880(2)(c), a public agency must offer some explanation for the nonexistence of the requested records at a minimum. When, as in this case, a public agency denies the existence of the records, and the record on appeal supports rather than refutes that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83. Whatever inferences Mr. Miles may draw from the nonexistence of the records, the LMPD's response to his request was consistent with the provisions of the Act insofar as it cannot make available for inspection records which no longer exist and the recordings at issue were destroyed in the normal course of business under the applicable records retention schedule requirements or, in the case of calls from the 574-LMPD tip line, never created. 3 Having affirmatively indicated to Mr. Miles in writing that no existing audio recordings are responsive to his request, and offered a credible explanation for the nonexistence of such records, the LMPD discharged its duty under the Open Records Act. 4 See 07-ORD-190 (adopting 07-ORD-188 and holding that a public agency cannot be required to "prove a negative" under the rule announced in
Bowling v. Lexington-Fayette Urban County Government, Ky. 172 S.W.3d 333, 340-341 (2005)).
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 As consistently emphasized by this office, the Open Records Act does not empower the Attorney General to order the creation of records. See 96-ORD-139; OAG 89-66; OAG 78-231. In 95-ORD-48, the Attorney General reaffirmed this longstanding principle in light of recent amendments to the Open Records Act, expressly declining "the invitation to invade the prerogative of public agencies in determining, 'in accordance with standards, rules and regulations prescribed by the Department for Libraries and Archives,' what records they must create. KRS 171.640." Accordingly, this office has affirmed the principles articulated in OAG 78-231 and its progeny relative to records creation, concluding that the Attorney General "cannot order an agency to create records, or declare its failure to do so a subversion of the intent of the Open Records Act. " 96-ORD-139, p. 2. See 98-ORD-5. As a corollary to this proposition, the Attorney General has often noted that a public agency cannot afford a requester access to nonexistent records.
2 Likewise, questions relating "to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3. See 04-ORD-032; 02-ORD-89. 04-ORD-216, p. 3 (reporter questioned the validity of invoices produced in response to request; the Attorney General advised that the relief sought was unavailable under the Act). See also 05-ORD-008 (questions concerning the value of information contained in records produced for public inspection are not justiciable in Open Records appeal).
3 See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame); 03-ORD-059 (radio run tapes were erased and reused in a manner consistent with applicable records retention schedule and were therefore not available for review); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist).
4 Although the LMPD fails to cite the authority under which any recordings that did exist were presumably destroyed after two years, a review of the Local Government General Records Retention Schedule , which the LMPD presumably relies upon, reveals that either of two potentially applicable records series provides support for the agency's response. More specifically, Series No. L4697, identified as "Radio Run Tapes," located under Public Safety -- Law Enforcement, "are used to record all dispatch information whether it be by telephone or radio, " and Series No. L5223, identified as "Dispatch Recordings, " located under Public Safety -- 911, "[m]ay be transmitted by radio or phone." Both series are characterized as "Indefinite" ; however, "[t]he term 'indefinite' is not a retention period and does not mean permanent. Indefinite means the period of time before the retention of the record begins." According to the applicable Disposition Instructions, the records must be "erase[d] and reuse [d] in 30 days" or "[d]estroy[ed] or reuse [d] in 30 days," respectively, if there is "no investigation relating to" the recording. Because there is no indication of a related investigation, the agency was not required to retain the 2005 recordings beyond 30 days.