June 3, 1997

In re: Dan M. Griffith/Covington Police Department

Open Records Decision

The question presented in this appeal is whether the Covington Police Department violated provisions of the Open Records Act in responding to a series of records requests submitted by Dan M. Griffith and his attorney. Based on the written record before us, we find that the department did not violate the Open Records Act, but instead that it complied in all material respects with the Act.

On February 18, 1997, attorney William I. Bubenzer filed an open records request with the Covington Police Department on behalf of his client, Mr. Griffith. Mr. Bubenzer requested information in the department's files "pertaining to any surveillance activities against Mr. Griffith, or of [sic] any records or reports of any activities of Mr. Griffith between 1989 and 1997." In addition, he requested copies of communications between the department and "any other state, federal, or private firms concerning any activities of Mr. Griffith." On February 20, 1997, Sergeant Steve Rusch responded to Mr. Bubenzer's request advising him that he had searched the department's files from 1989 to the present and found only one record, offense report 96-08586, with which he provided Mr. Bubenzer a copy.

In a letter dated March 12, 1997, Mr. Griffith supplemented Mr. Bubenzer's original request. Citing six separate incidents in which he had contact with the department, none involving arrests, he conceded that "there will be no official records." He asked that the department review its "intelligence or unofficial notes files [sic] . . . which would include communications from other government agencies, state and federal, and private firms or individuals which purport to describe accusation made against [him]." Mr. Griffith resubmitted this letter on April 22, 1997. On April 23, 1997, Sergeant Rusch responded to Mr. Griffith's letters explaining that the Covington Police Department furnished all records pertaining to him to Mr. Bubenzer on February 20. He reiterated that "there is no further data of any type." This appeal followed.

It is the opinion of this office that the Covington Police Department properly responded to Mr. Griffith's request by providing him with a copy of the 1996 offense report, which was the only record in the department's files on which his name appeared. The department further advised him that there are no other records relating to him in its files. This response was entirely consistent with the Open Records Act since a public agency cannot produce records which do not exist.

In 95-ORD-51, the City of Louisville Division of Police received a similar request. The applicant, who suspected that he had been the subject of an investigation from 1975 to 1986, requested "all records pertaining to [the] investigation, phone tapes, phone records, surveillance reports, etc." The city characterized the application as a blanket request for information, arguing that in order to respond to the request, the Division of Police would be forced "to inquire of all officers -- current or past -- and all units whether anyone recalls there ever being an investigation into the [applicant's] activities." This office agreed. In support, we cited KRS 61.872(3)(a) and (b) which provide:

(3) A person may inspect the public records:

(a) During the regular office hours of the public agency; or

(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.

At page 4 of the decision, we noted that although the Open Records Act permits inspection of records by receipt of copies through the mail, the Act "places two conditions on the exercise of this alternative method of inspection. First, the requester must 'precisely describe [ ]' the public records which he wishes to inspect. Second, those records must be 'readily available within the public agency.'" We concluded that the applicant's request failed to meet both of these conditions.

The logic of that decision can be extended to the present appeal. Although Mr. Griffith describes several incidents in which he had either direct or indirect contact with the Covington Police Department, he acknowledges that no arrests or official records were made. Just as in 95-ORD-51, in order to respond to his request, the department would be forced to interview all officers, past and present, to determine if they recalled any investigations into Mr. Griffith's activities. The department has searched its files and found one offense report on which Mr. Griffith's name appears. The department has furnished him with a copy of the report. The Open Records Act does not require more.

As noted, this office has consistently held that a public agency cannot afford a requester access to documents which do not exist or which it does not have in its custody. In general, it is not our duty to investigate in order to locate documents which the requester believes exist, but which the public agency states do not exist. The General Assembly has recognized, at KRS 61.8715, that there is "an essential relationship between the intent of [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records." Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants additional inquiries. Apparently there are no records relating to Mr. Griffith in the custody of the Covington Police Department other than the offense report which was furnished to him. The questions presented in this appeal are factual, and not legal, in nature.

This office has no reason to doubt the Covington Police Department's statement that the requested records do not exist. Sergeant Rusch's response was therefore entirely consistent with the provisions of the Open Records Act. Although there is no proof in this appeal that the department has willfully concealed or destroyed records with the intent to violate the Act, KRS 61.991(2)(a) establishes penalties for such actions. If Mr. Griffith has proof that the department has willfully concealed or destroyed records, he may wish to present this proof to the appropriate prosecutorial authority.

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.

A. B. Chandler III

Attorney General

Amye L. Bensenhaver

Assistant Attorney General


Distributed to:

Dan M. Griffith

P. O. Box 2054

Covington KY 41012

Sergeant Steve Rusch

Records Custodian

Covington Police Department

1929 Madison Avenue

Covington KY 41014

William I. Bubenzer

Attorney at Law

1491 Dixie Highway

Park Hills KY 41011

Mary Ann Stewart

Condit, Calvert & Stewart

303 Greenup Street, Ste. 100

Covington KY 41011-1768