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 because Ray Newberry's July 26, 2010, request for "tapes pertaining to the case of Ms. Jessica Currin" did not reach the Office of the Attorney General, that office did not violate KRS 61.880(1) by failing to respond. By letter dated August 18, 2010, Assistant Deputy Attorney General Tad Thomas notified Mr. Newberry that the office had no record confirming receipt of his request in its incoming mail log, but advised him that the Attorney General had turned the tapes over to the Kentucky State Police and was therefore no longer in possession of them. Mr. Thomas furnished Mr. Newberry with the name and address of KSP's official custodian of records and suggested that Mr. Newberry submit his request to KSP. Having done so, the Office of the Attorney General fully discharged its duties under the Open Records Act.
The Attorney General wears two hats in this appeal: the first as the agency whose records were requested as described in KRS 61.880(1) and the second as the agency charged with determining whether a violation occurred in the handling of that request as described in KRS 61.880(2). Appellants who question our ability to fairly decide such appeals should bear in mind that they may bypass this office and file their appeals in circuit court. KRS 61.882(2). As in all open records appeals where the issue presented relates to delivery and receipt of the request, we cannot assign error to the agency for its failure to respond. Stated simply, we are not equipped to resolve such a factual dispute. 07-ORD-001; 05-ORD-222; 04-ORD-110.
Upon receipt of notification of Mr. Newberry's appeal, which included a copy of his letter of request, the Office of the Attorney General promptly notified him that the office had turned the requested tapes over to the Kentucky State Police and was no longer in possession of them. Pursuant to KRS 61.872(4), 1 the office's official custodian of records advised Mr. Newberry where the records were located and provided him with the name and address of that agency's records custodian. 07-ORD-003. The Open Records Act requires nothing more. If Mr. Newberry wishes to pursue this matter, he may submit a request to the Kentucky State Police.
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.
Ray NewberryTad Thomas
Footnotes
Footnotes
1 KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.