Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Mason County Attorney violated the Open Records Act in the disposition of Steven Farmer's April 22, 2006, request for a copy of the birth certificate, or the printout from the Mason County Sheriff's database indicating the date of birth, of a named individual. For the reasons that follow, we find that the County Attorney's disposition of Mr. Farmer's request was procedurally deficient but substantively correct.
In his letter of appeal, Mr. Farmer states that as of May 9, 2006, the County Attorney had not responded to his records request. He requests review of the County Attorney's inaction relative to that request. On May 15, 2006, this office issued notification of Mr. Farmer's appeal to the County Attorney. Shortly thereafter, the County Attorney responded to Mr. Farmer's allegations, asserting:
1. The appellant, Steven Farmer, sends mail to the undersigned on a daily basis, and many days multiple mailings are received.
2. That the undersigned states that he believes that the letters are intended to harass or annoy the undersigned, and accordingly, for some time I have not even opened the letters from Steven Farmer.
3. That this is the third open records appeal filed against this office by Appellant.
4. That the subject request apparently seeks a birth certificate of a Defendant in a pending case before the Mason District Court, styled Commonwealth of Kentucky v. Eric Clay, Mason District Court Case No. 06-M-00198.
5. That the requested information is not in the possession of the undersigned.
6. That the information is further exempted as part of an ongoing prosecution handled by a County Attorney, pursuant to KRS 61.878.
In the interest of brevity, we incorporate by reference, and adopt in full, 06-ORD-106, a copy of which is attached hereto.
The Mason County Attorney violated KRS 61.880(1) by failing to respond in writing, and within three business days, to Mr. Farmer's request. The Mason County Attorney thereafter properly advised Mr. Farmer that he is not in possession of the requested record, and that even if he possessed a copy of the requested record, that record would qualify for exclusion from public inspection under KRS 61.878(1)(h) as a "record[] compiled and maintained by [a] county attorney [] pertaining to criminal investigations or criminal litigation" which is "exempted from the provisions of KRS 61.870 to 61.884 and [which] remains exempted after enforcement action, including litigation, is completed or a decision is made to take no action." The Mason County Attorney cannot produce for inspection a record which is not in his possession. Assuming, arguendo, he possessed a responsive record, he would be entitled to withhold the record, both now and in the future, under KRS 61.878(1)(h).
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.