Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Whitley County E-911 Center violated the Open Records Act in the disposition of Dolly Bunch's November 12, 2009, 1 request for "a copy of the 911 tape concerning James S. Bunch, on the date of June 21, 2005." For the reasons that follow, we find that the agency's response did not substantively violate the Act but raises some concerns about the Whitley County E-911 Center's records management practices.
The response to Ms. Bunch's request came from Angelia Matney, E-911 Supervisor, on November 23, 2009, and stated: "After have conducting [sic] a search for the 911 records for that date [June 21, 2005], they are unable to be located." Ms. Bunch initiated the present appeal, which was received in this office on February 22, 2010.
The sum and substance of Ms. Matney's response to this appeal is that three disks of 911 recordings, covering the periods from May 23 to August 4, 2005, and September 26 to December 6, 2005, are missing from the agency's inventory. Since the call concerning James S. Bunch was on one of those disks, it could not be retrieved.
We find no violation of the Open Records Act itself. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The fact that discs are missing from the inventory, however, gives cause for concern about the Whitley County E-911 Center's records management practices.
In its 1994 amendments to the Kentucky Open Records Act, the General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740 , dealing with the management of public records. . . ." KRS 61.8715. The loss of public records raises issues which may be appropriate for review under Chapter 171 of the Kentucky Revised Statutes. An agency's "inefficiency in its own internal record keeping system" should not be allowed "to thwart an otherwise proper open records request."
Com. v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008). Accordingly, we refer this matter to the Department for Libraries and Archives for additional 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 proceedings.
Dolly BunchAngelia MatneyPaul Winchester, Esq.
Footnotes
Footnotes
1 Although the request bears the date of November 12, Whitley County E-911's records state that it was not received until November 23.