Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Edmonson County E-911 ("E-911") violated the Open Records Act in the disposition of Eric Todd Lyvers' April 20, 2018, request for recordings and other records pertaining to a traffic safety checkpoint. For the reasons that follow, we find no violation of the Act.
Mr. Lyvers requested eleven hours of "Dispatch Log/Records" from December 6, 2014, and all records of the Edmonson County Sheriff's Office pertaining to a traffic safety checkpoint operated jointly with the Kentucky State Police on that date, including when the checkpoint began and ended. On April 25, 2018, Edmonson County Attorney Gregory R. Vincent replied that "dispatch records are only kept for one year after the incident." He further stated that E-911 had no records of a traffic safety checkpoint on December 6, 2014; that any records that would give information on the start of such a checkpoint had been destroyed; and that "the Edmonson County Sheriff's Department has no records in their office about this incident as they have been turned over to counsel in the civil case."
Mr. Lyvers' appeal was received in this office on May 3, 2018. He argues that E-911 improperly destroyed its records because a "former employee" told him the records were kept for five years. He further argues that he was improperly denied access to the records of the Sheriff's Office.
In a response dated May 8, 2018, Mr. Vincent provides a copy of a "Records Retention Policy" from E-911, which states that dispatch recordings and daily dispatch loge "will be destroyed one (1) year after the date of the incident unless this office is contacted and informed of any investigation that relates to information on the recording at issue." Evidently, E-911 was not so informed and thus any records were destroyed.
We note that the instructions in the Local Governments General Records Retention Schedule from the Kentucky Department for Libraries and Archives, Series L5223 ("Dispatch Recordings" ) and L5225 ("Daily Logs"), only require those records to be kept for 30 days: "Destroy or reuse in thirty (30) days if there is no investigation relating to information on the recording. " Therefore, Edmonson County E-911's policy actually provides for such records to be kept longer than the schedule requires. Furthermore, assuming that any written records had been made as a backup to the dispatch recordings, those would have been covered by Record Series L5224 ("Dispatch Record"), which states: "Retain for two (2) years, then destroy. " Accordingly, any such written records would likewise no longer exist under the Records Retention Schedule.
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. Since the nonexistence of the records has been adequately explained, we find no violation of the Act in the disposition of Mr. Lyvers' request for E-911's dispatch records from December 6, 2014.
The remainder of Mr. Lyvers' request relates to records of the Edmonson County Sheriff's Office, which Mr. Lyvers attempted to obtain from E-911. Mr. Vincent states that none of those records are in possession of E-911 because they are records of the Sheriff's Office. Furthermore, he asserts, "in order to save time," that any such records "would be in the possession of the private attorneys representing either the Kentucky State Police and/or the Edmonson County Sheriff's Office in the civil lawsuit filed by Mr. Lyvers against same and available to him through civil discovery procedures."
We find no error in the agency's basic argument that E-911 does not possess records of the Sheriff's Office, and thus Mr. Lyvers' request was directed to the wrong agency. Nevertheless, if Mr. Lyvers should make a subsequent request to the Sheriff's Office for those records, we note that it would not be an adequate response merely to state that those records have been "turned over to counsel." A third party authorized to possess an agency's records "holds [them] at the instance of and as custodian on the [agency's] behalf, and ? the [agency's] position that it has no control over these records is without merit." 04-ORD-123. 1 In the case presently before us, however, we find no violation of the Open Records Act.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
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