Opinion
Opinion By: Gregory D. Stumbo, Office of Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Logan County Sheriff violated the Open Records Act in its disposition of Bryan L. Reinhardt's May 3, 2004 request for a complete set of arrest records, warrants, inventory lists, lab results, and other records associated with Logan Circuit Court case nos. 03-CR-00026, 03-CR-00162, and 03-CR-00165. In his June 15, 2004 letter of appeal, Mr. Reinhart indicated that he had not received a response to this May 3, 2004 request. For the reasons that follow, we conclude that the sheriff's office's actions were consistent in part and inconsistent in part with the requirements of the Act.
After receipt of notification of the appeal and a copy of the letter of appeal, Wallace Whittaker, Logan County Sheriff, by letter dated June 23, 2004, provided this office with a response to the issues raised in the appeal. In his response, Sheriff Whittaker advised this office that all records related to Mr. Reinhardt's request held by the Logan County Sheriff's Office had been forwarded to him at the Northpoint Training Center.
In a letter to this office, dated June 25, 2004, Mr. Reinhardt acknowledged receipt of some records from the sheriff's office, but specifically listed other records that were not included in the records provided and requested that if any of the records did not exist that the agency so advise him. In his letter, Mr. Reinhardt indicated that he had sent a copy of his letter to the Logan County Sheriff and the Logan County Attorney.
Addressing first the procedural issue, the failure of the sheriff's office to respond to Mr. Reinhardt's May 3, 2004 request within three business days was a procedural violation of KRS 61.880(1), which requires that an agency respond to a request in writing within three days after its receipt, excepting Saturdays, Sundays and legal holidays.
Addressing the substantive issues, the sheriff's office's response to this office indicated that it had provided all records held by that office related to Mr. Reinhardt's request had been provided to him. 40 KAR 1:030 Section 6, provides: "If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See, for example, 03-ORD-087. Accordingly, the appeal is moot as to the records provided.
However, as to the records specifically listed in Mr. Reinhardt's reply letter, the sheriff's office is obligated to affirmatively advise him that these records do not exist. On this issue, this office has stated:
[A]n agency's inability to produce records due to the nonexistence is tantamount to a denial, and it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9; 01-ORD-59, p. 5; 01-ORD-220, p. 6. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient.
02-ORD-144, p. 3. In responding to an open records request, it is incumbent on the public agency to ascertain whether those records exist, to promptly advise requester of its findings, and to release all nonexempt responsive records. If no additional responsive records exist, the agency is obligated to affirmatively so advise the requester. 03-ORD-212. Accordingly, if it has not already done so, the sheriff's office should promptly respond to this portion of Mr. Reinhardt's request.
A party aggrieved by this decision may appeal it by initiating an 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.
Bryan L. Reinhardt, # 173109Northpoint Training CenterP.O. Box 479Burgin, KY 40310
Sheriff Wallace WhittakerP.O. Box 113Russellville, KY 42276
Thomas A. Noe IIILogan County Attorney317 West 4th StreetP.O. Box 608Russellville, KY 42276