Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Marvin T. Pennington initiated this appeal challenging the denial by the Lexington Police Department (LPD) of his September 18, 2015, request for "one complete copy" of the following:
1. Any and all Telephone logs, Phone [memos], Notes documenting the contacts and/or communications with the [LPD] Detectives to the following:
a. The Fayette County Commonwealth['s] Attorney['s] Office
b. any Judges
c. Attorney General['s] Office
d. State Police
e. Other Prosecutors
f. Other Police Officers
g. Investigators of the Commonwealth['s] Attorney[']s Office
h. any person of the public nature
i. any Law Enforcement agencies
2. Any E-mails, [Text] messages, Memorand[a] (or [their] like), Electronic Communication, Hard Copies (Letters)(or [their] like) , [including] but not limited [to], from the [LPD] Detectives to the following:
3. Any Flyers, Postings, Leaflets, Communication from the public pertaining to my case, obtained by [LDP] Detectives pertaining to my case 95-CR-0086.
(Original emphasis.)
The LPD received Mr. Pennington's request on September 25, 2015, and issued a written denial that day. Assistant Records Custodian Tonia N. Walters advised in response to Item 1 that "[a]ny notes, correspondences and [memoranda] that are used during the investigation are exempt from public inspection pursuant to KRS 61.878(1)(i)," the language of which she quoted. With regard to Item 2, the LPD asserted that complying would require the agency to "review every record regardless of physical form or characteristic, which was prepared, owned, used, in the possession of, or retained by [LPD]. The request is an undue burden and will not be honored pursuant to KRS 61.872(6)." The LPD maintained that without a "sender, recipient, date range and subject matter, we are unable to locate the documentation you've requested. The Attorney General states, the [Open Records Act does] not require public agencies to carry out research or compile information to conform to the parameters of a given request." 1 In response to Item 3, Ms. Walters advised Mr. Pennington that LPD had already provided "the entire case file regarding incident 95-6540" in response to his January 26, 2015, request and "[n]o further documentation is available for inspection. " This appeal followed.
On appeal Mr. Pennington contended relative to Item 1 that records he requested were from LPD detectives to the Commonwealth's Attorney's Office, neither of which is a private individual. With regard to Item 2, Mr. Pennington argued that he only requested items "which pertained to my case from January 30, 1995 until my conviction on March 31, 1995," a two-month period, which is not unreasonably burdensome. Mr. Pennington correctly noted that the LPD cited the wrong case number. He further asserted that records currently in dispute were not provided in response to his January 2015 request. Mr. Pennington disputed that no documentation was generated other than a police report taken by Detective Howard and maintained that he did not previously receive all documents in the LPD investigation file relating to his case. According to Mr. Pennington, a "Flyer was circulated around the University of Kentucky about my case. Detective Howard would have investigated that information."
Upon receiving notification of Mr. Pennington's appeal from this office, legal counsel for the LPD responded on its behalf. Counsel reiterated the agency's position regarding KRS 61.872(6) in reaffirming its denial of items 1 and 2 of the request. LPD emphasized that Mr. Pennington "failed to identify a date range, case number or individual senders and recipients of the requested communications." Mr. Pennington "has listed a variety of public offices without identifying individuals or a date range," counsel observed, "which makes it impossible for [LPD] to search for any responsive records." Because "it would take innumerable hours," counsel argued that "it is impossible to ascertain the nature and scope of this request for essentially every document in the possession" of the agency. In addition, LPD has provided "all documents regarding his criminal case" to Mr. Pennington. With regard to Item 3 of Mr. Pennington's request, LPD advised that on August 25, 2015, "all records in the case file" pertaining to case number 95-CR-086 (the correct number) were provided to him with personal information such as home addresses and social security numbers redacted. Counsel enclosed a copy of the agency's August 25, 2015, response, which indicated that 84 pages of responsive documents were released with dates of birth, home addresses and telephone numbers, and the victim's identity redacted on the basis of KRS 61.878(1)(a). 2 Because Mr. Pennington's current request is duplicative in this regard, counsel argued, LPD also invoked KRS 61.872(6) in denying Item 3. Counsel further maintained that "[t]here are no documents in his file to be provided which he does not already have." 3
This office has consistently recognized that a public agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6. See 05-ORD-198; 13-ORD-055. Accordingly, if the LPD received identical or duplicative requests from Mr. Pennington for the same public records, it was not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6. See 05-ORD-198. Unless a requester such as Mr. Pennington "can explain the necessity of reproducing the same records which have already been released to him, such as loss or destruction of the records, " a public agency such as the LPD is not required to satisfy the same request multiple times. 05-ORD-021, p. 8. Inasmuch as the record on appeal does not contain a copy of the request to which the LPD responded on August 25, 2015, our ability to conclusively resolve this question is greatly impaired.
On appeal the LPD again stated that all existing documents responsive to Item 3 of Mr. Pennington's request have already been provided. The LPD cannot provide Mr. Pennington with records it does not have nor is the Attorney General empowered to resolve a dispute concerning a disparity between the records being sought and those provided. OAG 89-81; 12-ORD-087; 15-ORD-028. "[O]bjections to alleged inaccuracies and omissions in the records disclosed" cannot be resolved in the context of an Open Records Appeal. 10-ORD-178, p. 2; 09-ORD-144; 12-ORD-162. Because Mr. Pennington "has produced no affirmative evidence, beyond mere assertions, that the agency possesses such records as [he] has requested, we do not have a sufficient basis on which to dispute the agency's representation that no [additional] records exist." 09-ORD-214, pp. 3-4; 15-ORD-028. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005) ("before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist"); compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence").
This office makes no finding relative to KRS 61.872(6) as resolution of the issues presented relative to Items 2 and 3 turns on the application of KRS 61.872(3)(b), pursuant to which a person is entitled to inspect public records:
[b]y receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. . . .
(Emphasis added). See 03-ORD-067. Mr. Pennington specifically requested to receive "one complete copy" of the records being sought. In construing this provision, the Attorney General has consistently observed that KRS 61.872(3)(b) places a greater burden on requesters who wish to access public records by receipt of copies through the mail. 99-ORD-63, p. 3 (citation omitted). Whereas KRS 61.872(2) merely requires a requester to "describ[e]" the records which he wishes to access by on-site inspection, 4 KRS 61.872(3)(b) requires the requester to "precisely describe" the records which he wishes to access by mail. In other words, a requester satisfies the second requirement of KRS 61.872(3)(b) if he/she describes in "definite, specific and unequivocal terms" the records he/she wishes to receive. Id. This Mr. Pennington has not done. See 08-ORD-147.
Because the LPD is located in Lexington, Kentucky (Fayette County) and Mr. Pennington is currently incarcerated at Kentucky State Reformatory, which is located in LaGrange, Kentucky (Oldham County), Mr. Pennington satisfies the first requirement of KRS 61.872(3)(b). However, Mr. Pennington is entitled to receive "a copy" of any responsive records by mail only after he "precisely describes" the records, which must be "readily available within the agency." 5 See 12-ORD-049. Item 1 of Mr. Pennington's request asked for "any and all" records documenting communications "with" detectives who are not identified, "to" eight different public agencies, like "any" judges or law enforcement agencies, in addition to "any person of a public nature, " with no time frame specified. Item 2 was equally ambiguous in asking for "any" records, whether in electronic or hard copy format, "including, but not limited to" records from detectives who are not identified, to the same vaguely worded list of public agencies, again with no time frame specified. Neither item of the request is "definite, specific and unequivocal. " See 08-ORD-047; 12-ORD-049. The analysis contained in 13-ORD-077 (affirming the denial by the Kentucky State Police of a request for a copy of any and all records containing the name of a specified individual on the basis of KRS 61.872(3)(b) as the request identified a date range but did not "describe records by type, origin, county, or any other identifier other than relation to a subject") is controlling; a copy of that decision is attached hereto and incorporated by reference. Based upon the foregoing, this office affirms the denial by the LPD of Mr. Pennington's September 18, 2015, request.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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