Opinion
Opinion By: Jack Conway, Attorney General; Robyn R. Bender, Assistant Deputy Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Fayette County Sheriff violated the Open Records Act in the disposition of William L. Davis's July 11, 2013, request for records relating to an incident involving his client, James Reynolds, Sr., that occurred on October 24, 2012, at 150 Northland Drive, Apartment 35, in Lexington, Kentucky. 1 At approximately 3:00 p.m. law enforcement officers entered the apartment in which Mr. Reynolds resided while conducting a joint operation aimed at locating and arresting suspects identified in packets provided to arrest teams from the Drug Enforcement Agency, the Lexington-Fayette Urban County Government Division of Police, and the Fayette County Sheriff's Office. Mr. Reynolds was not a suspect and protested the officers' entrance into his residence. Mr. Davis submitted his records request after Mr. Reynolds retained his legal services.
Having received no response to his request, Mr. Davis initiated this appeal on August 1, 2013. 2 We find that the Sheriff's disposition of Mr. Davis's request was procedurally deficient only if that request reached the Sheriff's office and a written response was not issued in three business days. 3 We further find that because the Sheriff cannot produce for inspection records that are not in her possession, she did not violate the substantive requirements of the Open Records Act. However, her obligations under the Act were not fully discharged insofar as she failed to provide an explanation for the nonexistence of the record of the incident involving Mr. Reynolds, required by GO 97-74a, in her response.
In an email directed to Mr. Davis on August 9, 2013, a copy of which was contemporaneously transmitted to this office, the Office of the Fayette County Sheriff, through counsel, notified Mr. Davis that her office was "unaware of [his] request until it received the Notice from the Attorney General's Office." Counsel assured Mr. Davis that the Sheriff's Office would "immediately begin the process of examining [his] request, as well as contacting the other law enforcement agencies referenced in [the] request, and respond to [Mr. Davis] on or before Tuesday, August 13." By letter dated August 15, 2013, a copy of which was not contemporaneously transmitted to this office, the Sheriff located and made available one responsive record, specifically General Order 97-74a, relating to report procedures. With respect to all remaining requests, the Sheriff advised Mr. Davis that it "holds no" responsive records. 4
Having received no correspondence from the Sheriff other than a copy of agency counsel's August 9 email to Mr. Davis, this office contacted counsel shortly before the original due date for our decision in this appeal. He advised that the matter had been resolved and arranged for the transmission of a copy of the referenced August 15 letter from Lieutenant Colonel Mathew Amato to Mr. Davis stating, as noted, that the Sheriff "holds no" records responsive to his request other than General Order 97-74a. Mr. Davis subsequently advised that he was dissatisfied with the Sheriff's response and wished to pursue his appeal. We thereafter submitted a series of written questions to the Sheriff, pursuant to KRS 61.880(2)(c), to substantiate the agency's position that it holds no records responsive to Mr. Davis's requests other than General Order 97-74a.
In responding to these questions, Lt. Col. Amato explained that the October 24, 2012, operation was conducted by the Lexington Division of Police. The Sheriff's Office "was asked to assist in a roundup of subjects who the Division of Police had obtained warrants for pursuant to 'drug buys' which occurred sometime prior to the . . . Sheriff becoming involved." 5 Lt. Col. Amato then described the search methods employed in attempting to locate records responsive to Mr. Davis's request:
a) A search of incident reports held by the Office of the Fayette County Sheriff for the year of 2012. No incident reports were found pertaining to Mr. Reynolds or the address of 150 Northland Drive, Apartment # 35 in Lexington. The search included the master incident report file held by the Administrative Assistant to the Sheriff as well as the incident report file held by Lt. Colonel Matthew Amato.
b) A search of the memorandum file held by the Office of the Fayette County Sheriff for the year of 2012. No memoranda were found pertaining to Mr. Reynolds or the address of 150 Northland Drive, Apartment # 35 in Lexington.
c) A search of the Office of the Fayette County Sheriff radio communications data base for October 24, 2012. No records were found pertaining to Mr. Reynolds or the address of 150 Northland Drive, Apartment # 35 in Lexington.
Responding to other questions we posed, Lt. Col. Amato indicated that "radio communications relating to the . . . operation were conducted on a radio frequency channel of the [LFUCG] Division of Police," and the Sheriff "holds no communication tapes or logs." Further, he indicated that the "packets of all wanted suspects" referenced in LFUCG's response to Mr. Davis's request to that agency were generated by and returned to LFUCG at the conclusion of the operation.
Based on the supplemental information provided, we find that the Office of the Fayette County Sheriff may have violated KRS 61.880(1) by failing to respond to Mr. Davis's request, if Mr. Davis's July 11, 2013, request reached her office, but find no substantive violation of the Act. Resolution of the procedural issue turns on the application of KRS 61.880(1) requiring public agencies to issue a written response to an open records request within three business days. Mr. Davis asserts that he mailed the request to the proper address, that he included his return address, and that the letter was not returned to him. The Sheriff's Office states that it was unaware of his request until it received this office's notification of his appeal. As noted, we are not equipped to resolve this factual dispute, but we urge the Sheriff's Office to implement policies aimed at ensuring timely written responses to open records requests.
Turning to the substantive issues on appeal, we find the Sheriff's responses to our KRS 61.880(2)(c) request establish that her office conducted a search for the records identified in Mr. Davis's request using methods that could reasonably be expected to produce responsive records, but that search yielded no results. 95-ORD-96, p. 7; 06-ORD-065; 10-ORD-149. It appears that the Sheriff's Office assisted other agencies in the joint operation, including the Drug Enforcement Agency and internal units of the LFUCG Division of Police, that precipitated the incident involving his client. Under these circumstances, it is plausible that her office did not engage in extensive recordkeeping relating to the operation. Records that were originally generated by DEA or the Division of Police and shared with the Sheriff's deputies, such as the packets describing and identifying the suspects, may well have been returned to the originating agency at the conclusion of the operation.
The Sheriff's Office conducted a search for the records Mr. Davis requested and, having located only one responsive record, discharged its duties under the Open Records Act by advising him that it "holds no" other records. See OAG 90-26 (recognizing that "If a record of which inspection is sought does not exist, the agency should specifically so indicate"); accord, OAG 86-38 (holding that "KRS 61.880(1) requires that [an agency] advise the requesting party as to the existence of the documents requested"); 01-ORD-38 (holding that "an agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state, in clear and direct terms"); see also 02-ORD-163; 10-ORD-137; 12-ORD-192.
Nevertheless, because the policy which the Sheriff produced in response to Mr. Davis's request states that her office "shall make a record of every incident to which it responds whether a written report is created or not" in cases involving inter alia , a "citizen complaint," GO 97-74a.III.A.1., such a record is presumed to have been created following the incident involving Mr. Davis's client. "Comprehensive reporting," the policy states:
is necessary to ensure that alleged events are recorded accurately, and to protect the rights of deputies and citizens. A record will be made of actions taken by the responding deputy whether the call be a request for service or self-initiated activity.
GO 97-74a.III. A.4. The Sheriff did not produce a record of the incident involving Mr. Davis's client. 6 Under the rule announced in
Eplion v. Burchett, 354 S.W.3d 598 (Ky. App. 2011), Mr. Davis "is entitled to a written explanation for [the] nonexistence" of a record of the incident. In Eplion , the jailer to whom a request was submitted was unable to produce records generated during his predecessor's administration that should have been transferred to him. "Consistent with the purposes of the Open Records Act and the duties it imposes upon responsible officials," the court concluded that the jailer was obligated to provide the requester with a written explanation for the nonexistence of the requested records. Eplion at 603. Although no record of the October 24, 2012, incident involving Mr. Davis's client exists, the Fayette County Sheriff's obligation to Mr. Davis will not be fully discharged until she explains to him, in writing, why no record of the incident was made as required by GO 97-74a.III.A.1. Accord, 13-ORD-024; 12-ORD-192; 12-ORD-112.
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:
William L. DavisKathy H. WittLuke MorganMatthew J. Amato III
Footnotes
Footnotes
1 A summary of Mr. Davis's request follows:
. records identifying the Fayette County Deputy Sheriffs that entered in his client's residence;
. dispatch logs and incident reports relating to the incident;
. warrants and affidavits authorizing entry into the residence and/or arrest of any person located therein;
. records describing the suspect with whom Mr. Reynolds was confused;
. policies governing incident reports in cases of misidentification of a suspect and mistaken home entry;
. any other complaints relating to Fayette County deputy sheriffs that allege the misidentification of a suspect or mistaken home entry from January 24, 2010, through October 24, 2012;
. records that the Sheriff's Office believes support the deputy sheriffs' actions and their entitlement to immunity under state and federal law.