Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Lexington-Fayette Urban County Government Division of Police did not violate the Open Records Act in the timing of its response to Eugene E. Bates' request "to inspect" policies relating to evidence collection, disposition of stolen property, and citizen's arrest or in requiring him to prepay for copies of records responsive to his request. Although he asked to inspect those records, Mr. Bates is currently incarcerated at the Fayette County Detention Center and is precluded from conducting on-site inspection by virtue of the circumstances of his confinement. 09-ORD-080, p. 1. He must, therefore, prepay for copies of the responsive records pursuant to KRS 61.873(3)(b) and KRS 61.874(1). With regard to this issue, we find that 00-ORD-225, a copy of which is attached hereto and incorporated by reference, is dispositive. Accord, 10-ORD-033.
Although the Division did not violate the Open Records Act in denying Mr. Bates' request for "the index to case no. 2011-00141346," the statutes upon which it relied in doing so were inapplicable. On January 11, 2012, this office contacted the LFUCG Department of Law to ascertain what the requested index is, how and when it was created, and what information it contained. Unable to answer our questions, the Department of Law contacted the Division and was apprised that no such record exists in this case. The Department explained that the Division's designated records custodian did not respond to this request, owing to her absence, and that the acting custodian denied the request on the basis of KRS 61.878(1)(h) and KRS 17.150(2) without first ascertaining whether the record existed. The Division cannot produce for inspection a record that never existed, but it is incumbent on the Division to retrieve all responsive records and review those records before issuing a denial. If responsive records do not exist, the Division's denial of the open records request should be premised on the records' nonexistence and not on an exception that has no application. Where, as here, the Division can provide the requester with a plausible explanation for the nonexistence of the record, it should do so. 1
Finally, we find that the record on appeal does not support Mr. Bates' claim that the Division's written response to his request was untimely. The Division offers a plausible explanation for its alleged failure to respond to the request based on Mr. Bates' use of an erroneous address and delays in delivery occasioned thereby. The Division states that his request arrived on December 1, 2011, and a response was issued three business days later. For this reason, we assign no error to the Division.
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.
Distributed to:
Eugene E. BatesShirley CruseMichael R. Sanner
Footnotes
Footnotes