Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Meetings Decision
Dock Sellers, Jr., appeals the Oldham County Police Department's disposition of his September 6, 2015, 1 request for:
1) Officer David Ingram's notes of the [motor vehicle] accident [to which his daughter was a party;]
2) Officer Flynn's notes of the [same] accident;
3) If and when was Officer Flynn dispatched to the sight?[;]
4) What time of the day did Officer Flynn interview Emily Sellers regarding the accident?[;]
5) What time of the day did Officer Ingram interview Emily Sellers?[.]
Mr. Sellers received no response to his request prompting him to initiate this open records appeal.
The department responded to Mr. Sellers' allegations, through its records custodian, upon receipt of notification of this appeal. Acknowledging its error in failing to issue a timely written response, the custodian explained that the request "was misplaced and overlooked partly because it [was] the same exact request (with the exception of requesting party) submitted on September 6, 2015, by Bob Miller." 2 The custodian apologized for the delay, but explained that neither Officer Ingram nor Officer Flynn "ha[d] any notes regarding the collision." He provided narrative responses to each of the three questions Mr. Sellers posed.
The Oldham County Police Department's response to Mr. Sellers' open records request was, in fact, untimely. The timing of the response therefore violated KRS 61.880(1). We will not belabor this issue. Assuming the custodian communicated with officers Ingram and Flynn to ascertain whether they took notes relating to the accident, or conducted a thorough but unproductive search for their notes, we find no error in his belated response. A public agency cannot produce for inspection or copying nonexistent records, and the agency discharged its duty under KRS 61.880(1) by so advising the requester. Accord, 02-ORD-163 (city agency did not violate Open Records Act in denying request based on the nonexistence of responsive records). In the absence of prima facie evidence refuting the agency's claim that no responsive officers' notes exist, we affirm the department's response to requests one and two.
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005).
Although not statutorily required to do so, the department went one step further by providing narrative responses to a series of questions that constituted requests for information rather than requests for records. It is well-established that a public agency is not required to answer questions or otherwise respond to requests for information. See, e.g., 02-ORD-49 (quoting OAG 79-547 for the proposition that "[t]he purpose of the Open Records Law is not to provide information but to provide public access to public records which are not exempt by law"). To this extent, the department's response went above and beyond the call of 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 In his letter of appeal to this office, Mr. Sellers states that he hand-delivered his request on October 6, 2015. The request itself is dated September 6, 2015.
2 Although Mr. Miller "had no legal claim to such records as cited by KRS 189.635(5)," Mr. Sellers clearly has a "legal claim" to the records as the parent of a minor who was a party to the accident. This issue is not disputed.