July 18, 1996

In re: Tony Graves/Tompkinsville Police Department


This matter comes to the Attorney General on appeal from the Tompkinsville Police Department's actions relative to Tony Graves's request to inspect public records pertaining to the arrests and convictions of Alex Bernard Tooley. On May 30, 1996, Mr. Graves requested copies of “all records and reports that pertain to all arrests and convictions of Alex Bernard Tooley from January 1, 1986, through May 28, 1996, including 1) arrest warrants and supporting affidavits; 2) all police investigation reports; 3) all written statements made by Tooley and witnesses in each crime; 4) disposition in each crime.”

Mr. Graves sent this office a letter, dated June 14, 1996, stating that he had still not received a response from the Tompkinsville Police Department relative to his request. He asked that this office review the request and issue a written decision stating whether the Police Department violated the provisions of the Open Records Act.

In response to this office's notification of appeal, Joe Petett, Assistant Chief of Police for the Tompkinsville Police Department, contacted Mr. Graves, advising him as follows:

Due to the fact that we are not custodian of records of Monroe County Courthouse. I'm referring you to the Monroe County Circuit Clerk, Joyce Emberton, Court House, Tompkinsville, KY 42167 [sic].

Mr. Petett forwarded a copy of his response to the Attorney General.

The question presented in this Open Records Appeal is whether the Tompkinsville Police Department violated the provisions of KRS 61.870 through KRS 61.884 in responding to Mr. Graves's request. It is the opinion of this office that although Mr. Petett's response was procedurally deficient, it was substantively correct. Nevertheless, because this appeal raises records management issues, we have referred it to the Department for Libraries and Archives for a determination as to whether the Police Department may have violated the provisions of Chapter 171, and in particular those statutes relating to records retention and recovery.

KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:

Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.

Because the Tompkinsville Police Department failed to respond to Mr. Graves's request, in writing, and within three business days, its actions constituted a procedural violation of the Open Records Act. We urge the Police Department to review the cited provision to insure that future responses conform to the Open Records Act.

Turning to the substantive issues in this appeal, we find that the Police Department properly advised Mr. Graves that it could not satisfy his request since these records are in the custody of the Monroe Circuit Court Clerk. This office has consistently recognized that a public agency cannot furnish access to documents which it does not have or which do not exist. OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-203; 94-ORD-65.

KRS 61.872(4) provides:

If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.

The Police Department properly advised Mr. Graves that the records he seeks may be in the custody of another public agency, and identified the public agency. In our view, the Department's response was substantively consistent with the Open Records Act. In the absence of evidence to the contrary, we must assume the truthfulness of Mr. Petett's assertion that the requested records either are not in his custody or do not exist.

Nevertheless, the Police Department has an obligation relative to proper records management and retention. KRS 61.8715 provides:

To ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of . . . [KRS 61.870, et seq., the Kentucky Open Records Act, KRS 171.410 to 171.740 relating to public records management, and KRS 61.940 to 61.957, relating to strategic planning for computerized information systems.]

The General Assembly has thus recognized an “essential relationship” between the intent of the Open Records Act and statutes relating to proper records management. KRS 61.8715. Only through effective and efficient records management can the public be afforded full access to public records. With these observations in mind, we have referred this matter to the Department for Libraries and Archives for additional inquires as the Department deems appropriate.

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:

Tony Graves, #116986

Otter Creek Correctional Center

P.O. Box 5000

Wheelwright, Kentucky 41669-5000

Joe Petett

Assistant Chief of Police

206 North Magnolia Street

Tompkinsville, Kentucky 42167