Request By:
Donald Ray Hall, # 153862
Danny R. Webb
Harold D. Bolling
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Letcher County Sheriff's Office violated the Open Records Act in denying Donald Ray Hall's February 1, 2008, request for "records or reports generated on May 27, and/or May 28, 2000, wherein a call was made reporting a domestic violence disturbance at 331 E. Potter, Fleming-Neon, Kentucky 41840 . . . between the hours of 6:p.m. [May 27, 2000] thru 6:a.m. [May 28, 2000]." In denying Mr. Hall's request, the Sheriff's Office advised that no responsive records could be located, explaining that the agency's "records start in 2003, any prior year's records were taken by [the] previous sheriff."
We find that the Sheriff's Office did not state a legally sufficient basis for denying Mr. Hall's request. Our decision turns on the analysis found at pages 6 through 8 of 07-ORD-020 in which we declared:
We find no support in the law for the [sheriff's] position that records generated during a prior administration are the records of the prior constitutional office holder and that it is he, rather than the current office holder, who is "the proper custodian of the records." Because the requested records belong to the office, and not the office holder, the current [sheriff] is responsible for establishing and maintaining an active, continuing program for the management of the records of the agency he serves that includes those records generated in past administrations.
A copy of that decision is attached hereto and incorporated by reference.
The records to which Mr. Hall requests access may no longer exist by virtue of the fact that they were properly destroyed in the normal course of business under the applicable records retention requirements. For example, Records Series L4680 establishes a three year retention period for Complaint and Offense Reports (Incident Reports), and Records Series L4663 establishes a five year retention period for Investigations other than Felonies Files. 1 1 The records to which the Sheriff's Office denied Mr. Hall access were generated nearly eight years ago. A denial based on proper records management practices, specifically destruction following the expiration of established retention requirements, is legally correct. A denial based on the current office holder's failure to take possession of the records of his office from his predecessor in office is not. If, in fact, the records to which Mr. Hall requested access still exist, and reside in the custody of the previous sheriff, it is incumbent on the current sheriff to undertake immediate efforts to secure those records for the office he serves, and to afford Mr. Hall access to them if they do not otherwise qualify for statutory protection under one or more of the exceptions to the Open Records Act.
Given the Letcher County Sheriff's Office's apparent misunderstanding of its continuing records management duties, we have referred this matter to the Kentucky Department for Libraries and Archives for additional inquiry as that agency deems warranted.
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.
Footnotes
Footnotes
1 Both of these records series are found in the Local Government General Records Retention Schedule.