Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the McLean County Sheriff's Department violated the Open Records Act in denying that portion of Tammy Griffith's August 6, 2013, open records request in which she asked for copies of "text messages obtained, including but not limited to those of Jacob Johnson, Jesse Santos, Micah Griffith, and Ginger Everly," 1 in the department's investigation of her son, Micah's, death on April 20, 2013. Although the department cannot produce a copy of records that were never in its possession, we find that it violated the procedural requirements of the Open Records Act found at KRS 61.880(1) by failing to advise Ms. Griffith that it did "not have any text messages received by Micah Griffith on the described cell phone" 2 in its original response to her request.
In her letter of appeal, Ms. Griffith indicated that in a June 19, 2013, conversation with Officer Anthony Howard, Officer Howard advised her that "he had received the text messages between other persons and Micah Griffith for the time specified but refuse[d] to let [her] see them or send [her] copies of them." In an undated response to her August 6 request, Chief Deputy Sheriff Ken Frizzell refused to disclose "phone records, identifiers, or phone numbers of witnesses" to Ms. Griffith, explaining that "this information is private and personal and would constitute unwanted invasion of privacy of the individual's identifiers and cell phone as well as the multiple phone numbers called by them [sic]."
In correspondence directed to this office after Ms. Griffith initiated this appeal, McLean County Attorney W. E. Quisenberry, Jr., stated that, upon receipt of notification of Ms. Griffith's appeal, he confirmed with the department "that they are not in possession of the text messages described by Ms. Griffith." Mr. Quisenberry explained:
The text messages she desires were in fact subpoenaed by the McLean County Sheriff Department but were not provided by the phone company. Apparently, the phone company did not maintain those records at the time they were subpoenaed.
Because the department did "not have any text messages received by Micah Griffith on the described cell phone, " Mr. Quisenberry concluded, the department could not honor Ms. Griffith's request.
Although Mr. Quisenberry accurately states the law as it relates to records that are not in the possession of a public agency, it is unclear why the department did not originally respond to Ms. Griffith's request by advising her that it did not possess the requested text messages. Ample authority exists for the proposition that "the inability to produce records, due to their apparent nonexistence [or, in this case, the lack of possession], is tantamount to a denial...." See, e.g., 01-ORD-38, p. 9. The same authority establishes the corollary requirement that "it is incumbent on the agency to so state in clear and direct terms." Id. It is obvious that the McLean County Sheriff's Department "cannot furnish that which it does not have or which does not exist," but "a written response that does not expressly so state is deficient." 02-ORD-144, p. 3; see also 12-ORD-162 and authorities cited therein. Had the department conducted a search for the text messages before responding to Ms. Griffith's request, it could have properly notified her that it did not possess text messages responsive to her August 6 request, and this dispute might have been avoided. Because it did not do so, we must conclude that it committed a procedural violation of the Open Records Act in its original response to that request. Having so concluded, we note that, on appeal, the county attorney mitigated this violation by confirming that the department does not possess responsive text messages and thereafter so advising Ms. Griffith.
The record on appeal offers no insight into the department's apparent belief that it possessed the requested text messages at the time of Ms. Griffith's request. The county attorney indicates that the text messages were subpoenaed from the phone company but not obtained because "the phone company did not maintain those records at the time they were subpoenaed. " Consequently, the department now denies custody of the text messages. Under these circumstances, the department cannot be said to have substantively violated the Act in denying Ms. Griffith's request. KRS 61.991(2)(a) establishes a penalty for public officials who willfully conceal or destroy public records with the intent to violate the Open Records Act. Evidence of willful concealment, if it exists, must be presented to local prosecutorial authorities. If Ms. Griffith has proof of willful concealment, she can proceed under KRS 61.991(2). The Attorney General is not empowered to render a decision on this question.
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:
Tammy L. GriffithKen FrizzellWilliam E. Quisenberry, Jr.
Footnotes
Footnotes
1 On appeal, Ms. Griffith narrowed the scope of her request, focusing on "text messages between Jacob Johnson, Ginger Everly, and Jesse Santos with Micah Lee Griffith, specifically the text messages received by Micah Griffith on cell phone [--/--/--] on April 19 and 20, 2013, before his death."
2 August 27, 2013, letter from McLean County Attorney W. E. Quinsenberry, Jr., to the undersigned.