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 Kentucky Open Records Act in its disposition of Thomas Stone's April 10, 2019, request for "a request for assistance from [St. Matthews Police] Officer Ratliff that was picked up by [Middletown Police] Officer Eric Kemper . . . to [a certain address on April 9, 2019] and any other records associated with that incident." For the reasons that follow, we find no violation of the Act.
The procedural history of this matter is somewhat convoluted and this appeal is the result of that complexity. On April 11, 2019, LMPD records custodian Sharon King responded that "LMPD is not in possession of any records responsive to the request" because "[t]he officers involved are not members of the LMPD." She advised Mr. Stone to contact the St. Matthews Police Department and the Middletown Police Department for any records regarding the incident. Mr. Stone then replied that he had already contacted those agencies, which had informed him that "if you dial 911 it goes through [LMPD's] system and then the calls go out to the appropriate police departments and back again." Upon learning that Mr. Stone's request was for "911 audio, " Ms. King stated: "I will submit the request to metro safe [ sic ]. Please allow up to and including April 29, 2019 to respond. If any records become available any earlier, I will immediately notify you."
On April 11, 2019, as a courtesy, Ms. King forwarded Mr. Stone's request to MetroSafe, a department within Louisville Metro Emergency Management Services ("LEMS") that handles its own open records requests independently from both LMPD and Louisville Metro Government. On April 15, 2019, Mr. Stone initiated this appeal, complaining that LMPD was not affording timely access to records because it had told him not to expect a response before April 29, 2019.
On April 16, 2019, Ms. King forwarded Mr. Stone a message from MetroSafe stating that MetroSafe had found no record pertaining to the incident in question, and further stating, "This request is officially closed." On April 19, 2019, however, LEMS issued a separate response to Mr. Stone, through Assistant Jefferson County Attorney Annale R. Taylor, which stated that "[t]he Open Records Office of Emergency Services -- MetroSafe is not the official custodian of the records you are requesting" and provided the addresses of the St. Matthews and Middletown Police Departments as the correct records custodians. Thus, Mr. Stone received two arguably inconsistent dispositions of his request.
On April 22, 2019, Ms. Taylor responded to this appeal on behalf of LMPD and explained that the correct procedure when LMPD receives a request for 911 or radio recordings is to inform the applicant that the "request should be submitted directly to LEMS." This appeal has brought to both agencies' attention "that this is not always happening." Instead, in this instance, LMPD forwarded Mr. Stone's request to MetroSafe. Ms. Taylor indicated that "[b]oth agencies are . . . rectifying that error to ensure that it does not happen again."
On April 23, 2019, confused by the two apparently conflicting responses to his request, Mr. Stone contacted Ms. Taylor to clarify that he only wanted "Louisville Metro's records, if they exist" and not the records of the "two other cities." On April 24, 2019, Ms. Taylor informed him that she had sent the April 19 response from LEMS unaware of MetroSafe's prior response of April 16, sent to Mr. Stone via LMPD. She further explained that LEMS had interpreted his request as "asking for the 911/dispatch audio of the communication between [the St. Matthews and Middletown officers] rather than records of any LMPD officers dispatched to the same location," whereas LMPD had correctly interpreted the request as asking for LMPD's own records. In light of Mr. Stone's clarification, she identified the communication of April 16, 2019, as the "appropriate response," since LMPD was not involved and therefore neither LMPD nor MetroSafe had any responsive records.
In its response to this appeal, LMPD also clarified the representation to Mr. Stone by the St. Matthews and Middletown Police Departments that "all [911] calls go through Louisville MetroSafe regardless of the department." Under the "redundant system" in Jefferson County, all incoming calls from within the county are "routed through the main 911 system of MetroSafe and automatically forwarded, without intervention of a MetroSafe employee, to the appropriate police department." Normally, MetroSafe employees do not answer a call, or monitor traffic, unless it is routed to LMPD; however, they will occasionally answer another agency's calls in exceptional circumstances, such as when "the appropriate police department's system is down [and] the incoming call is automatically forwarded back to MetroSafe." Thus, while MetroSafe's automatic system handles all 911 calls and radio traffic in Jefferson County, its employees ordinarily do not "touch" any of those calls or radio traffic unless they pertain to LMPD. Since LMPD was not one of the agencies involved in this incident, MetroSafe did not monitor any of the communications or generate any records, but its system merely served as a router of communications.
Given these facts, we conclude that LMPD did not violate the Open Records Act, because it possessed no responsive records, as none of its officers were involved in the incident. A public agency cannot afford a requester access to a record that it does not have. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. LMPD timely informed Mr. Stone that it possessed no responsive records, and thus complied with its obligations under the Act..
The procedural course of this request was irregular, since the ordinary protocol with a request for radio or 911 communications would have been for LMPD to inform Mr. Stone that he should instead address his request to LEMS. Nevertheless, in this case, no procedural harm resulted, since LMPD caused no delay by promptly forwarding Mr. Stone's request to LEMS, which in turn made its own disposition of the request on April 16, 2019, within the three business days allowed by KRS 61.880(1).
We caution LMPD, however, as to its apparent use of boilerplate language on April 11, 2019, telling Mr. Stone to "allow up to and including April 29, 2019," a period of more than two weeks. A public agency taking more time than the statutory three days to provide records must justify its delay with a "detailed explanation" under KRS 61.872(5). If LMPD routinely advises the public to expect longer delays, without regard to the particular circumstances and the provisions of KRS 61.872(5) , it runs the risk of future violations of the Open Records Act. The use of "boilerplate language that was in no way correlated to [the] particular request . . . is an unacceptable practice that violates the express requirements of the Act and, in particular, the requirement of timely production of public records codified at KRS 61.880(1)." 11-ORD-135. Moreover, a pattern of delays caused by such conduct constitutes a subversion of the intent of the Act within the meaning of KRS 61.880(4). 19-ORD-004. In this case, however, LMPD caused no delay in processing Mr. Stone's request. Accordingly, we find no violation of the 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.