Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Clinton County Detention Center violated the Kentucky Open Records Act in denying the request of James M. Hardin, Sr. to receive one copy of "a document that reflects all dates that I was incarcerated in the Clinton County Jail under Indictment No. 01-CR-00274." Having allegedly received no response to his request dated July 15, 2005, Mr. Hardin initiated this appeal by letter dated July 27, 2005. Because the CCDC has merely requested clarification as to Mr. Hardin's identity and related information in order to locate the record(s) requested, rather than denying access, this office finds no violation of the Open Records Act. To the extent no records exist which are responsive to Mr. Hardin's request as framed, the CCDC affirmatively indicated as much to Mr. Hardin in a written response; nothing more is required.
Upon receiving notification of Mr. Hardin's appeal from this office, Janet Ferrill, Deputy Jailer, responded on behalf of the CCDC. According to Deputy Jailer Ferrill, the CCDC "has no copy of a[n] indictment on 01-CR-00274 for James Hardin." However, the CCDC has "an arrest warrant on Jim Hardin for Harassing Communication." Contrary to Mr. Hardin's assertion, the CCDC "sent Mr. Hardin a letter requesting more information" on July 22, 2005, a copy of which is attached to Deputy Jailer Ferrill's response. Although Deputy Jailer Ferrill was unable to "find anything on Case No. 01-CR-00274," she offered to continue searching for responsive records if Mr. Hardin would send "more information." Given the inability of the CCDC to conclusively determine whether the "James Hardin" requesting records and the "Jim Hardin" identified on the only responsive records located are one and the same, the request by the CCDC for clarification was entirely reasonable in our view; such a response is not properly characterized as a denial. 04-ORD-198, p. 3; 05-ORD-137. KRS 61.872 governs access to public records. Pursuant to KRS 61.872(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. (Emphasis added).
In other words, the Open Records Act contemplates access to records "by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. " 03-ORD-067, p. 4. 1 Therefore, a requester that both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. Id. As in this case, a "requester whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of the records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52, 96-ORD-186." Id., p. 5; 04-ORD-011. 2 In construing this provision, the Attorney General has observed:
KRS 61.872(3)(b) places an additional burden on requesters who wish to access public records by receipt of copies through the mail. Whereas KRS 61.872(2) requires, generally, that the requester "describe" the records which he wishes to access by on-site inspection, KRS 61.872(3)(b) requires the requester to " precisely describe[]" the records which he wishes to access by mail.
A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside University Dictionary 926 (1988); "strictly defined; accurately stated; definite, " Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963). We believe that a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in definite, specific and unequivocal terms the records he wishes to access by mail.
03-ORD-067, p. 5, citing 97-ORD-46, p. 3; 04-ORD-011. Until Mr. Hardin describes the record(s) requested with the requisite specificity, the CCDC cannot be expected to honor his request.
On appeal, the CCDC reiterates that no records matching the description provided (indictment number) exists. As long recognized by the Attorney General, a public agency is not required to honor a request for records which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 99-ORD-198; 98-ORD-200; OAG 91-112; OAG 87-54; OAA 83-111. Said another way, a public agency cannot afford a requester access to records that it does not have or which do not exist. 03-ORD-205, p. 3, citing 99-ORD-98. Rather, the right to inspect attaches only after the requested records are "prepared, owned, used, in the possession of or retained by a public agency. " 02-ORD-120, p. 10. Such is apparently not the case here.
However, the inability of the CCDC to produce the requested records due to their apparent nonexistence "is tantamount to a denial, " of Mr. Hardin's request, and it was incumbent on the CCDC to notify Mr. Hardin that no records fitting the description provided exist "in clear and direct terms." 02-ORD-144, p. 3. (Emphasis added). 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." Id. Accordingly, the Attorney General has held that a public agency's response violates KRS 61.880(1) "if it fails to advise the requesting party whether the requested record exists," 98-ORD-154, p. 2, citing 97-ORD-161, p. 3, with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively so indicating as the CCDC did here. 04-ORD-046, p. 4; 03-ORD-205, p. 3, citing 99-ORD-98.
When an agency denies the existence of requested records, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute" absent a reason to question the truthfulness of the agency's assertion. 01-ORD-36, p. 2; 04-ORD-059. In short, the limited function of this office in adjudicating an appeal filed pursuant to the Open Records Act is to review the course of action taken by a public agency, and issue a written decision indicating whether the agency violated the Act, not to locate the records at issue. KRS 61.880(2)(a); 03-ORD-205, p. 3, citing OAG 86-35, p. 5. "We are not empowered to go beyond the written record to determine whether agency employees and officials purposefully attempted to avoid public scrutiny by failing to create a paper trail." 04-ORD-059, p. 4, citing 00-ORD-16, p. 5.
Pursuant to KRS 61.8715, 3 there may be occasions when the Attorney General will require a public agency to substantiate a denial on this basis by documenting the efforts undertaken to locate the records or explaining why no such records were created. On the facts presented, further inquiry is simply not warranted. Because the CCDC made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," and has complied with the statutory mandate to notify Mr. Hardin in writing that no responsive records were located, the CCDC has discharged its duty relative to Mr. Hardin's request. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-138; 97-ORD-161; OAG 91-101. In closing, this office encourages the parties to continue communicating and working toward an amicable resolution of this dispute - Mr. Hardin in formulating his request, and the CCDC in locating any responsive records.
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.
James Hardin, # 160644Kentucky State Reformatory3001 West Highway 146LaGrange, KY 40032
Shelby Gene Ferrill, JailerClinton County Detention Center314 E. Cumberland StreetAlbany, KY 42602
Wanda WhiteClinton County Attorney110 N. Washington StreetAlbany, KY 42602
Footnotes
Footnotes
1 At issue in 03-ORD-067 was whether the Jefferson County Clerk had subverted the intent of the Act in his disposition of a request for the name and zip code associated with a specified address. In finding no substantive violation, this office observed that a county clerk's office "is equipped to readily locate a deed if a precise description, namely deed book and page number, is provided." Id., p. 5. Likewise, the CCDC is equipped to locate records which are responsive to Mr. Hardin's request upon receiving clarification as to which of the potentially responsive records are being requested assuming such records exist. When a requester provides the clerk (or records custodian) with a sufficiently detailed description, "the clerk [custodian] is required to mail [the requester] a copy of the deed [specified records] upon prepayment of reasonable copying charges not to exceed ten cents per page and postage charges." Id. However, if the requester (Mr. Hardin) is unable to provide the requisite identifying information, it is not incumbent on the clerk (or records custodian) "to make extraordinary efforts to identify, locate and retrieve the records in order to copy and mail [the records] to the [requester] ." Id., p. 5 (citation omitted).
2 In addressing the degree ofspecificity required, this office has recognized:
An open records request should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the request does not require "the specificity . . . of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government." 95-ORD-49, p. 5, citing Providence Journal Company v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.R.I. 1978). Instead, the requester should submit "a brief and simple request for the [government] to make full disclosure or openly assert its reason for nondisclosure." Id. Requests must be framed with sufficient clarity and directness to enable the custodian of records to identify and retrieve the records [the requester] wishes to access. This, as we have so often noted, is a precondition to inspection of public records. See e.g., 92-ORD-1261, and authorities cited therein.
03-ORD-012, p. 3, citing 99-ORD-140, p. 6.
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3 In relevant part,KRS 61.8715 provides:
The General Assembly finds an essential relationship between the intent of [the Open Records Act] , dealing with the management of public records, and of [the chapters] dealing with the coordination of strategic planning for computerized information systems in state government; and that 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 these statutes.
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