January 17, 1996

In re: William Smith/Elizabethtown Police Department


This matter is before the Attorney General on appeal from the Elizabethtown Police Department's response to Mr. William Smith's September 19, 1995 open records request for a copy of the arrest order on or about May 5, 1995 in which he was arrested for a parole violation at 509 Pear Orchard Estate. He indicated that he had received no response to his request from that agency.

Subsequent to receipt of Mr. Smith's letter of appeal and as authorized by KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office contacted the Elizabethtown Police Department to obtain additional information and documentation relative to his open records request. Ms. Manuela Williford, Administrative Assistant, Elizabethtown Police Department, advised this office that the Department had timely responded to Mr. Smith's open records request and informed him that the Department did not have any record of an arrest by that Department on or about May 5, 1995 as indicated in his request. Ms. Williford forwarded to this office copies of correspondence from the Department to Mr. Smith which confirmed this fact.

In a follow-up response letter, dated November 15, 1995, Mr. Charles Sanders, Assistant Chief of Police, responded to Mr. Smith as follows:

As per our last correspondence, the Elizabethtown Police Department does not have copies of said arrest that occurred on May 5, 1995 at Pear Orchard Road in Elizabethtown.

The Elizabethtown Police Department did not affect the arrest on May 5, 1995. Sgt. Kelly was present at the request of the Probation/Parole Office in Elizabethtown to assist in serving parole revocation warrants by their office.

We regret that we cannot be of further assistance to you, however, as stated in previous correspondence with you, we do not have the paperwork that you have requested.

It is the decision of this office that the Department's response to Mr. Smith's request was proper and consistent with the Open Records Act, KRS 61.870 to 61.884. This office has long recognized that a public agency cannot furnish access to records which it does not have. 94-ORD-41.

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 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.






Distributed to:

Manuela Williford

Elizabethtown Police Department

318 South Mulberry Street

Elizabethtown, Kentucky 42701

William Smith #94541

Eastern Kentucky Correctional Complex

P. O. Box 636

West Liberty, Kentucky 41472