Request By:
Clarence H. Hixson, Esq.
Sarah Stewart Ashburner, Esq.
Ms. Sharon L. King
Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Metro Police Department ("LMPD") violated the Open Records Act in the disposition of attorney Clarence Hixson's undated request for records relating to an October 2014 incident. For the reasons that follow, we find that LMPD was untimely in fulfilling the request but ultimately committed no substantive violation of the Act.
Mr. Hixson's request, addressed to paralegal Sharon L. King, asked for the following:
1. Copies of all documents related to the 911 call from William Brown made on October 6, 2014 from 4302 Mud Lane and complaining that Thomas Peckinpaugh had pointed a gun at Morris Beasley, including a true unredacted copy of the 911 call tape.
2. True copies of all notes, reports and documents related to [the incident], including:
3. All records of contacts between LMPD officers/detectives on any and all of October 6-10, 2014 related to officer "Brooke Benton" [phone number redacted] who talked with Cynthia Beasley and Thomas Peckinpaugh on October 5, 6, (1:36 pm) 7, 8, and 9, 2014 and other dates about an EPO to be filed against Morris.
On November 21, 2016, paralegal Pamela A. King acknowledged receipt of Mr. Hixson's request and stated: "Due to the scope of the request, please allow up to and including December 12, 2016 to locate and prepare the records for release pursuant to KRS 61.878. If any records become available earlier, I will notify you." Mr. Hixson noted his objection to this time frame in a letter dated November 22, 2016.
Finally, on January 6, 2017, LMPD issued a final disposition of Mr. Hixson's request, stating as follows:
1. In response to your request for copies of the LMPD documents relating to the 911 call from William Brown on October 6, 2014 from 4302 Mudd Lane, please be advised the above referenced incident is beyond our agency's two (2) year retention period. All documents, 9-1-1 & dispatch recordings have been destroyed.
2. Enclosed please find copies of all documents related to the October 6, 2014 incident.
3. In response to 2. (a) through (e) and 3. for all records of phone calls, emails, texts, letters and records of contacts between LMPD officers/detectives and Brooke Benton from October 4-11, 2014 please be advised the requested records are exempt from release under KRS 61.878(1)(a) where public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy .
(Emphasis in original.) Mr. Hixson's appeal was received in this office on February 6, 2017.
On February 22, 2017, Assistant Jefferson County Attorney Sarah Stewart Ashburner responded to the appeal on behalf of LMPD. She provides the following additional information:
With regard to item (1) of the request, LMPD unfortunately omitted the fact that the custodial agency for said records is MetroSafe (911), and not LMPD. LMPD has advised that the above-referenced records (the 911 tape) are only provided to LMPD by MetroSafe after a formal request for said records is received by MetroSafe. Accordingly, because LMPD did not initiate a formal investigation of the events described in Mr. Hixson's request, LMPD did not have reason to request the recordings and therefore never had custody of the responsive records.
[T]he referenced incident is beyond the custodial agency's (in this case MetroSafe's) two year retention period [and] all documents, 9-1-1 and dispatch recordings were destroyed pursuant to the State Archives and Records Commission retention schedule. [Local Governments General Records Retention Schedule, series L5224 (Dispatch Record) and L6090 (Emergency Communications Recordings) .]
. . . .
With respect to Item (3) of Mr. Hixson's request, we have been advised by LMPD that no responsive records exist with the exception of the summary of an interview with Officer Benton which was included within the investigative report dated November 12, 2014, provided to Mr. Hixson pursuant to item (2) above. LMPD erroneously stated that responsive records were exempt pursuant to KRS 61.878(1)(a) which protects against unwarranted invasions of personal privacy. LMPD apologizes for any confusion created by its inaccurate response.
Based on this information and the January 7 response, it appears that LMPD has provided all responsive records that exist. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Therefore, we find that the agency eventually complied with the substantive provisions of the Open Records Act.
We must, however, find a procedural violation in that LMPD's fulfillment of Mr. Hixson's request was untimely. KRS 61.880(1) requires a written disposition of a request for public records within three days, excluding weekends and holidays. Under KRS 61.872(5), a longer time may be taken if a record "is in active use, in storage or not otherwise available." In that instance, "the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection ." (Emphasis added.) We have previously stated that KRS 61.872(5) requires a " date certain , not a projected or speculative date, when the records will be available for inspection. " 01-ORD-38 (emphasis in original).
LMPD did not invoke KRS 61.872(5) in its response on November 21, 2016, nor did it claim the existence of any of the circumstances to which that subsection applies. Furthermore, LMPD neither gave a detailed explanation of the cause for delay nor complied with its given date of December 12, 2016, by which to provide the records. LMPD admitted as much in an e-mail from Ms. King to Mr. Hixson dated January 4, 2017, which stated: "Please accept my apologies the requested records were not received on the promised delivery date and that I neglected to advise you regarding additional time needed to complete the retrieval and review the records to determine any redactions and/or exemtions that may be applicable." Accordingly, we conclude that LMPD's disposition of Mr. Hixson's request was in violation of the time requirements of KRS 61.880(1).
A party aggrieved by this decision may appeal it 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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.