Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
James T. Clemons appeals the denial of his May 22, 2014, request to the Lexington Division of Police for copies of DNA test results conducted on any suspect investigated by the Division of Police in the murders of four named women. KRS 61.872(4) requires a noncustodial agency to which a records request is misdirected to "notify the applicant and . . . furnish the name and location" of the actual custodial agency. Although the Division's original and supplemental responses to Mr. Clemons's request and appeal did not satisfy this legal requirement, 1 its responses to questions directed to it by this office under authority of KRS 61.880(2)(c) 2 substantiated its position. The Division gave belated notice that it is not the custodian of the records sought and furnished Mr. Clemons with the name and location of the custodial agency. In addition, the Division invoked KRS 17.175(4) as the proper basis for denying Mr. Clemons access to the single responsive record in its custody.
In its first supplemental response, the Division stated that it conducted an extensive search in the relevant case files but located no responsive records. The Division explained that DNA tests were conducted on many suspects in the referenced cases, but that it possessed no documentation regarding the results, referring Mr. Clemons to the Kentucky State Police Crime Lab, 100 Sower Boulevard, Suite 102, Frankfort, Kentucky 40601. In response to our KRS 61.880(2)(c) request for additional documentation to substantiate its position, the Division provided factual clarification concerning related and unrelated investigations. Again acknowledging that numerous DNA tests were conducted, the Division explained that it "was not receiving actual hard copies of the test results" but was instead obtaining the results by telephone or by accessing the state police BEAST system. 3 For the first time, the Division acknowledged custody of a single responsive test result "maintained in a physical form (paper printout) . . . identifying Robert Smallwood as the contributor of the suspect DNA found in the incidents." The Division suggested that the responsive record "may be exempt under KRS 61.878(1)(a)." In subsequent correspondence, the Division asserted that the responsive record was exempt under KRS 17.175(4).
KRS 61.872(4) states that if the agency to which the request is directed does not have custody or control of the requested record(s), the agency "shall notify the applicant and shall furnish the name and location" of the custodial agency. In its original response the Division gave no indication that an attempt to ascertain whether it possessed responsive records was made or that responsive records might reside in another agency's custody. In its 40 KAR 1:030 Section 2 supplemental response the Division acknowledged that DNA testing was conducted in the referenced investigations but that an extensive search for responsive records yielded no results, referring Mr. Clemons to the Kentucky State Crime Lab. In response to a request for additional documentation submitted to the Division by this office under authority of KRS 61.880(2)(c), the Division acknowledged custody of one responsive test result but explained that the remaining test results were obtained by telephone, or by computer access, from the State Crime Lab. With regard to the responsive test result in its custody, the Division ultimately invoked KRS 17.175(4).
Mr. Clemons cannot obtain copies of records from the Lexington Division of Police that are not in the Division's custody or control. The Division discharged its duty under KRS 61.872(4) when it notified him that it was not the custodial agency, by copy of letters directed to the Office of the Attorney General, and furnished him with the name and location of the custodial agency. The Division properly invoked KRS 17.175(4) in denying Mr. Clemons access to the responsive record referenced in its responses to our requests for additional documentation. That statute prohibits disclosure of DNA identification records in response to an open records request, expressly providing that such records "shall be exempt from the provisions of KRS 61.870 to 61.884." This position finds support in 03-ORD-126, a copy of which is attached to this decision and its analysis adopted in full. Although its original and supplemental responses were deficient, the Lexington Division of Police's ultimate resolution of Mr. Clemons's request comported with the requirements of the Open Records Act.
Either party may appeal this decision 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 Citing KRS 61.872(6), the Division originally denied Mr. Clemons's request as a blanket request the fulfillment of which would impose an unreasonable burden. Alternatively, the Division asserted that DNA test results are investigative notes excluded from public inspection by KRS 61.878(1)(a) and (i). The Division also maintained that Mr. Clemons's request "requires research" that it was not legally obligated to conduct.
2 KRS 61.880(2)(c) states:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.)
3 Identified as "KSP's responding portal."