NOT TO BE PUBLISHED
97-ORD-86
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
#502
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