Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Lawrence Trageser appeals the City of Pioneer Village-Pioneer Village Police Department's failure to respond to his June 19, 2015, open records request, and inconsistencies in the city's and department's ultimate disposition of his request. Mr. Trageser requested access to:
[A]ny and all records reflecting the personnel file of Samuel L. Adams, a former patrol officer. The records sought shall include, but are not limited to, any complaints, disciplinary actions, or investigations pertaining to Samuel L. Madison during his ten[ure] as an employee.
He indicated that on June 19 he contacted the Pioneer Village City Clerk to confirm the identity of the department's official custodian of records. Further, he indicated that she identified the department's chief as official custodian. Later that day, Mr. Trageser continued, he hand-delivered his request to a police officer in the department's parking lot and that the officer agreed to "give it to the chief."
In an August 5, 2015, letter from City Attorney Mark E. Edison to this office, Mr. Edison denied this sequence of events asserting that the request:
was not given to either the City Clerk of the City of Pioneer Village, Recka Daniels, whose office is located at 4700 Summitt Drive, Louisville, Bullitt County, Kentucky, which is open five (5) days per week. Nor was this letter given to Chief Reynolds whose office is also located at 4700 Summitt Drive, Louisville, Bullitt County, Kentucky, who does not maintain regular office hours. Due to the small size of the Pioneer Village Police Department, this office is closed a substantial amount of time while the officer on duty is patrolling. Chief Reynolds has inquired of the other Police Officers who work for the City and been assured that not one of them received the June 19, 2015, letter. The first notice of this letter was [the Attorney General's] notice dated July 27, 2015, which included the June 19, 2015, letter and the July 7, 2015, appeal letter.
Noting that the "City Policy requires all Open Records Request[s] to be forward[ed] to the city attorney's office for a response," 1 the city attorney advised that he "was never contacted by either of these city officials or any other city employee concerning the June 19, 2015, request."
Mr. Edison also denied that "there has ever been a city employee by the name of Samuel L. Adams," but acknowledged that Samuel L. Madison was employed as a police officer by the department from June 21, 1993, through May 30, 1998. He concluded that "after a careful examination of the city's records, and due to the passage of some seventeen years, no personnel file for Samuel L. Madison exist[s] at Pioneer Village."
Mr. Edison amplified on this position in response to questions submitted to the agencies by this office pursuant to KRS 61.880(2)(c). 2 Our questions focused on the discrepancy between the final disposition of Mr. Trageser's request and a telephone conversation we had with Chief D. J. Reynolds after Mr. Trageser initiated his appeal. We explained that the conversation led us to believe that the department maintained Officer Madison's personnel file and was prepared to release the nonexempt portions of the file. We asked that the city agencies explain the discrepancy between what we understood Chief Reynolds to say and the city attorney's statement that "no personnel file for Samuel L. Madison exist[s] at Pioneer Village." Mr. Edison responded that the agencies "cannot find any personnel files for Officer . . . Madison," but indicated that he:
personally reviewed the files that Chief Reynolds has in his possession which are not in any way related to any "complaints, disciplinary actions or investigations," but contain auto accident/workman's compensation claim by Officer Madison, Officer Madison's time sheets for the term of his employment by the City of Pioneer Village, and some of his attendance records for the continuing classes to maintain his certification as a police officer. 3
Accordingly, Mr. Edison concluded, "[t]here are no records as requested in Mr. Trageser's June 19, 2015, letter in the possession of the city . . . or its elected or appointed officials." Given the factual dispute concerning delivery and receipt of Mr. Trageser's request, and the ambiguities in his request, we assign no error to the City of Pioneer Village and the Pioneer Village Police Department.
We first examine whether these agencies improperly denied the existence of responsive records. As noted, Mr. Trageser requested access to:
any and all records reflecting the personnel file of Samuel L. Adams, a former patrol officer. The records sought shall include but are not limited to, any complaints, disciplinary actions or investigations pertaining to Samuel L. Madison during his ten[ure] as an employee.
This request could be reasonably interpreted as a request for Officer Samuel L. Adams' personnel file and "any complaints, disciplinary actions, or investigations pertaining to [Officer] Samuel L. Madison during his [ten]ure as an employee." It is now clear that he misidentified Officer Madison in the first sentence of his request, and meant to request Officer Madison's personnel file "including but . . . not limited to, any complaints, disciplinary actions, or investigations pertaining to Samuel L. Madison . . . ." Because no complaints, disciplinary actions, or investigations into Officer Madison were located, the agencies denied the existence of responsive records. We assign no error to the agencies on these facts since Mr. Trageser's request did not satisfy the standards established by the courts in Commonwealth v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008) (approving a request that is "adequate for a reasonable person to ascertain the nature and scope") and in City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 843, 855 (Ky. 2013) (requiring requester to submit a request that describes the records sought "so as to make locating them reasonably possible").
Turning to the issue of delivery and receipt of Mr. Trageser's request, we again assign no error. Mr. Trageser offers proof, in the form of "the phone record of his cellular phone, to confirm that at 10:07:44 a.m., on 6/19/2015, [he] called the City of Pioneer Village, city hall, and spoke with the city clerk, " two receipts from local businesses bearing the 6/19/2015 date, and a physical description of the officer who he indicates accepted the request on behalf of the chief. Although he offers no proof to refute this claim, 4 Mr. Edison denies that any Pioneer Village police officer received the request. On numerous occasions we have acknowledged that the Office of the Attorney General "is not equipped to resolve a factual dispute concerning the actual delivery and receipt of [an] open records request." 12-ORD-122, p. 2, citing KRS 61.880(1) as construed in 02-ORD-109, and 02-ORD-226 (holding that if the request does not reach the agency, "for whatever reason, the agency should not be faulted for its failure to respond" ). Although probative, the proof Mr. Trageser submits is not conclusive, and we cannot assume successful delivery of his request. It is for this reason that we assign no error.
Mr. Trageser states that he verified, in a June 19 telephone conversation with the city clerk, that the chief of police was the official custodian of the records he sought. The agencies concede that, "given the small size of the Pioneer Village Police Department," the department's office "is closed a substantial amount of time while the officer on duty is patrolling. " Lest this fact impede the public's right of access to records of the department, we urge the City of Pioneer Village to implement KRS 83A.035(3)(b) by assigning the duties of official custodian of records for all city records to the city clerk with the clear understanding that she will consult with Mr. Edison and, in this case, the chief before disclosing city records. If it has not already done so, we also urge the city to ensure compliance with KRS 61.876(1)(a), (b), and (c), and KRS 61.876(2), 5 by adopting and posting rules and regulations, "in conformity with the provisions of KRS 61.870 to 61.884," governing open records access to city records. By doing so, the city will obviate the necessity of telephone calls like the one Mr. Trageser indicates he made on June 19, and, more importantly, fully discharge its statutory duty.
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 As long as it does not "occasion delays in agency response," the Attorney General has approved the policy of processing open records requests through agency counsel since such a policy "ensures uniformity and adherence to the law." See, e.g., 93-ORD-134; 15-ORD-014.
2 KRS 61.880(2)(c) provides:
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 Mr. Edison explained that prior to 1998, departing employees were given the option to take their personnel files with them and that no duplicates of the files were maintained. This practice ended in 1998, and the city "now has personnel files on both active and former police department employees that were not damaged in a fire in the Police Department offices." The pre-1998 practice, as described, clearly contravened records management and retention requirements established by law.
4 Such proof might consist, for example, of affidavits from each member of the small Pioneer Village police department denying receipt of Mr. Trageser's request.
5 KRS 61.876(1)(a), (b), and (c) and KRS 61.876(2) provide:
(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
(a) The principal office of the public agency and its regular office hours;
(b) The title and address of the official custodian of the public agency's records;
(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies;