Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Nelson County Fiscal Court violated the Open Records Act in responding to Jack Hurst's November 16, 2009, request for "all invoices of purchases of the Nelson County Police Department from 7/1/08 thru 6/30/09" by providing him with invoices of the Nelson County Sheriff's Office for the referenced period and advising him that "[t]here is no Nelson County Police Department." We find that the record on appeal contains insufficient evidence to support the claimed violation of the Open Records Act predicated on the wrongful denial of Mr. Hurst's request.
In his letter of appeal, Mr. Hurst acknowledged receipt of some 531 records but complained that they are records of the Nelson County Sheriff's Department and not of the Nelson County Police Department. Mr. Hurst explained that he previously obtained a copy of the "Nelson County Public Protection Transition Agreement," entered into by the Nelson County Fiscal Court and the Nelson County Sheriff's Department in January 2000, under the terms of which the County Judge and the Sheriff have "equal authority . . . over the hiring and firing of this now dual office." Continuing, he observed:
If there is no Nelson County Police Department as alleged by Judge Dean Watts . . ., then there would have been no "invoices, " no bills, and no purchases, but there are "invoices" . . . . I have seen and am in possession of numerous "invoices" addressed and billed to the Nelson County Police Department, P. O. Box 578, Bardstown, Kentucky totaling thousands of dollars, and these invoices are paid by the Nelson County Fiscal Court, not the Nelson County Sheriff's Department . . . [located at] 210 Plaza Drive, Bardstown, Kentucky.
Mr. Hurst estimated that there are "at least 20 credit cards in the name of the Nelson County Police Department." In closing, he objected to the disclosure of records of the Nelson County Sheriff's Department instead of records of the Nelson County Police Department, and demanded disclosure of the latter "as requested on 11-16-09."
In supplemental correspondence directed to this office, Nelson County Attorney John S. Kelley, Jr., provided the following background information:
Nelson County, at one time, did have a police force that operated under the name of "Nelson County Police Department." That department was eventually eliminated and all of the patrol duties and officers were incorporated with the Nelson County Sheriff's Department with additional funding being provided to compensate for the patrol duties assumed by the Nelson County Sheriff's Department. Though the Nelson County Police Department was abandoned on January 18, 2000, various agencies and vendors have continued to submit bills and refer to the Nelson County Police Department even though there is no such entity at this time.
Mr. Kelley indicated that Judge Watts' decision to disclose invoices of the Sheriff's Department was prompted by his desire to give "a thorough answer to the open records request . . .," and not by his desire to "placate" Mr. Hurst. On behalf of the Nelson County Fiscal Court, he asserted that because Mr. Hurst did "not cite[] any denial by the Nelson Fiscal Court regarding his request," there is no appeal than can be brought before the Attorney General. Mr. Kelley emphasized that Mr. Hurst's request that the Attorney General's Office decide whether or not there is in fact a Nelson County Police Department is outside the scope of an open records appeal under KRS 61.880(2)(a).
Nelson County Fiscal Court is entirely correct in asserting that questions concerning the existence of the Nelson County Police Department cannot be resolved in the context of an open records appeal. KRS 61.880(2)(a) restricts our role in open records disputes to "review[ing] the request and denial and issu[ing] within twenty days, 1 a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884." We do not agree, however, that Mr. Hurst fails to state a claim on appeal. That claim is premised on the Fiscal Court's apparent omission of invoices issued to the Nelson County Police Department. The record on appeal is silent as to the source from which Mr. Hurst obtained the Nelson County Police Department invoices appended to his appeal. The Fiscal Court indicates that there is no Nelson County Police Department, but that there is a Nelson County Sheriff's Department and that "all invoices requested that are in our office" were provided. If the Fiscal Court produced all responsive invoices issued to the Nelson County Police Department and the Nelson County Sheriff's Department, its obligations under the Open Records Act are fully discharged. If the Fiscal Court produced only those invoices issued to the Sheriff's Department, and Mr. Hurst obtained Police Department invoices from another source, the Fiscal Court's duties under the Open Records Act are not fully discharged, and it must now make full disclosure.
The question of whether the financial and operational integration of the Nelson County Police Department and the Nelson County Sheriff's Department comports with existing law is, as the Fiscal Court observes, beyond the scope of our review under KRS 61.880(2)(a).
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.
Jack HurstDean WattsJohn S. Kelly, Jr.
Footnotes
Footnotes
1 Because this appeal presented an issue of first impression, the deadline for issuance of a decision was extended by thirty working days per KRS 61.880(2)(b)2.
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