Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Linda Duncan appeals the Harlan County Police Department's handling of her February 2 and March 22, 2016, requests for records relating to her deceased aunt. On February 2, Ms. Duncan requested copies of "all police reports or misc [sic] documentation filed as a result of contact [between her aunt] and [named and unnamed employees of the] department" for the past two years. Having received no response to her request, Ms. Duncan submitted a second request to the department on March 22. In it she requested:
(1) Police Reports that concern or involve [her aunt and/or her aunt's address];
(2) Logs, dispatch notes reflecting 911 calls and/or any/all miscellaneous documentation created by the Harlan Police Department concerning or involving [her aunt and/or her aunt's address].
Again, Ms. Duncan received no response to her request prompting her to initiate this open records appeal.
Upon receipt of notification of Ms. Duncan's appeal, the Harlan Police Department responded through counsel. Counsel stated that he "conferred with Chief of Police, Mike Thomas[, and that] Chief Thomas had not seen any request until [counsel] advised him of same." 1 Counsel further advised:
I am enclosing Uniform Citation dated December 6, 2015, as well as the accompanying KYIBRS Report from the same date. These were done by Sgt. Owens. Sgt. Owens also did a CIT Report regarding Ms. Fox. The Police Department considers these confidential, but I will forward to you upon request. If any additional documents are discovered, I will forward same.
This office subsequently requested that the department describe the CIT report and explain why the CIT report is "consider[ed] . . . confidential. " We received no follow-up correspondence from the department or counsel.
Chief Thomas denies receipt of Ms. Duncan's February 2 and March 22, 2016 requests. The record on appeal does not indicate whether remaining department staff were questioned about receipt of the requests or whether an incoming mail log was examined to confirm or refute receipt. Ms. Duncan asserts that she mailed the requests but presents no proof of the department's receipt of the request. 2 This office is not equipped to resolve a factual dispute concerning agency receipt of an open records request. If neither of Ms. Duncan's requests reached the department, for whatever reason, the department should not be faulted for its failure to respond. However, we remind the department that "delivery to the office" of a public officer, as opposed to delivery to the officer him or herself, is sufficient to trigger an agency's open records duties, and that to suggest otherwise "would be tantamount to encouraging our government officers to 'bury their heads in the sand' to public matters with which they are charged."
Baker v. Jones, 199 S.W.3d 749, 752 (Ky. App. 2006).
Following a discussion between Chief Thomas and agency counsel, counsel responded to Ms. Duncan's appeal by providing her with a uniform citation dated December 6, 2015, and a KYIBRS report from the same date. Counsel indicated that "Sgt. Owens also did a CIT Report regarding" Ms. Duncan's aunt, but that the department "considers these confidential. " We trust that these represent all responsive records located and that the department conducted a good faith search "using methods which can reasonably be expected to produce the records requested." 95-ORD-96 (establishing a standard for assessing the adequacy of an agency's search for records).
In spite of our inquiries concerning the nature of a CIT report and the legal authority justifying nondisclosure of the report, we received no additional correspondence from the agency or agency counsel. We therefore find that the department violated KRS 61.880(1) by failing to identify the statutory basis for withholding the CIT report and explaining how the statute applies to the report.
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 We note that a copy of the notification of Ms. Duncan's appeal was mailed to Chief Thomas on May 2, 2016. The notice was not returned as undeliverable. We trust, therefore, that the notification reached the department on or about the same date on which counsel received his copy.
2 The Open Records Act does not require the records applicant to submit his or her request by certified mail return receipt requested. KRS 61.872(2) (recognizing hand delivery, mailing, or faxing of a request as the proper modes of transmission). However, where a factual dispute exists concerning agency receipt of an open records request, such a return receipt provides proof of actual delivery of the request. 08-ORD-007 (agency assigned no error where it disputed receipt of request, and requester offered no proof that it was received).