Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the McCreary County Sheriff violated the Open Records Act in the disposition of Mike Stephens' July 9, 2009, request for various records relating to wrecker services. For the reasons that follow, we find that the Sheriff both procedurally and substantively violated the Act.
In his July 9 request, Mr. Stephens sought to inspect and copy the following:
(1) Copies of any standards, policies or rules used by the Sheriff's office to create or implement a wrecker rotation list, together with any citations of legal authority relied upon for said standards, policies or rules.
(2) A copy of the call list of all requests for wrecker services made by the McCreary County Sheriff's Office in the time frame dated July 31, 2008 to July 1, 2009 together with the name of the requesting officer and the service provider contacted.
(3) Copies of any and all orders of the McCreary County Fiscal Court directing your office to create a wrecker rotation list.
(4) Copies of the documents that your office required all wrecker service providers in McCreary County to sign before they were allowed to enter or be placed on a wrecker rotation list.
(5) Copies of any order or citation of authority which would allow or permit the McCreary County Sheriff's Office to create or implement a county owned and/or operated impound lot or storage facility.
According to Mr. Stephens, he was contacted the next day (apparently not in writing) by Sheriff Gus Skinner, who told him that "the requested information" would be delivered to him on July 13, 2009.
Having received nothing as of August 8, 2009, Mr. Stephens initiated this open records appeal. In subsequent correspondence dated August 22, 2009, Mr. Stephens advised that Sheriff Skinner had delivered to him on August 14, 2009, "what he claimed was the response to my open records request." Mr. Stephens attached copies of what had been provided. The documents consisted of a bar graph labeled "Number of Incidents by Wrecker Company" (bearing the fax header "McCreary County 911"); a "Wrecker Incidents Summary" for date range 7/31/2008 to 7/1/2009; and a "Wrecker Companies Detail Report."
Mr. Stephens complains that nothing has been produced in response to his numerical requests 1, 3, 4, and 5, and that as to request 2 "[n]o name of the requesting officer was provided." He also states in general that the "proffered documents were not the requested materials, do not appear to be official records, are loaded with errors and omissions, and appear to contain invented information." The McCreary County Sheriff has made no response to the present appeal in any form.
This office is not an arbiter of the veracity of public records, and therefore we do not address Mr. Stephens' claim that the documents contain errors, omissions, or "invented information." Cf. 97-ORD-183, p. 4 ("Disclosure of public records under the Open Records Act does not constitute a guaranty of the accuracy of all information contained therein"). We must, however, find that the Sheriff violated KRS 61.880(1) by failing to provide a written response to Mr. Stephens' request within three (3) business days.
Furthermore, KRS 61.880(1) requires a public agency to provide an explanation of the legal basis for withholding any public records. Since the Sheriff has never asserted that he does not have any of the requested records, we presume them to exist and to be in the Sheriff's possession and control. To the extent that Mr. Stephens' request was for public records, as opposed to being a request for information, 1 the Sheriff therefore violated the Open Records Act insofar as he failed to produce responsive records to numerical requests 1, 3, 4, and 5 without explanation.
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 proceedings.
Footnotes
Footnotes
1 Numerical requests 1 and 5 refer to a "citation of authority," which if such citation is not contained in an existing public record is merely a request for information. Similarly, if "the name of the requesting officer" (numerical request 2) is not contained within the call list, the Open Records Act does not require that information to be provided. See 09-ORD-136 and authorities cited therein.