Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Michael McQueen initiated this appeal challenging the failure of the Laurel County Sheriff's Office to issue a written response upon receipt of his July 27, 2014 request for one "copy of any and all documents that are public record pertaining to Tommy Johnson (Detective) concerning charges of theft, disciplinary action and termination from Laurel County Sheriff's [Office] and EMS." This office received Mr. McQueen's October 13, 2014 appeal on October 20, 2014, and issued a "Notification to Agency of Receipt of Open Records Appeal" to both Laurel County Sheriff John Root and Laurel County Attorney Jodi L. Albright on October 22, 2014, advising that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal," but any response "must be received no later than Tuesday, October 28, 2014." As of this date no response has been received on behalf of the Sheriff's Office nor has anyone requested an extension of time in which to provide a response. Neither of the Notifications was returned as being undeliverable. This inaction by the Sheriff's Office constitutes a violation of KRS 61.880(1).
A public agency such as the Sheriff's Office must comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access to the records, generally speaking. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." When construing the mandatory language of this provision, the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208; 12-ORD-085. Failing to respond, as the Sheriff's Office did here, violates the mandatory language of the Act.
The Sheriff's Office had several different opportunities to discharge its duty under KRS 61.880(1); first, upon receipt of Mr. McQueen's request; second, upon receiving the Notification of his Appeal from this office; and third, when this office contacted its legal counsel via e-mails dated October 30, 2014, and November 6, 2014, in the interest of having a fully developed record, to inquire as to whether the agency wished to respond. It is undisputed that the Sheriff's Office has not issued a written response to Mr. McQueen's request. A public agency is not permitted to elect a course of inaction. See 05-ORD-190; 11-ORD-038; 12-ORD-085. As the Attorney General has long recognized, the procedural requirements codified at KRS 61.880(1) "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 03-ORD-067, p. 2, citing 93-ORD-125, p. 5.
Inasmuch as the Sheriff's Office failed to respond upon receipt of Mr. McQueen's request, and upon receipt of the Notification of his Appeal, it has failed to advance a legal argument in support of its apparent denial of that request. Pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action shall rest with the agency. . . ." 1 Accordingly, the Sheriff's Office must provide Mr. McQueen with copies of any existing records in the custody of the agency which are responsive to his request unless the Sheriff's Office can and does belatedly satisfy its burden of proof by articulating, in writing, a basis for denying access in terms of one or more of the exceptions codified at KRS 61.878(1). Pursuant to KRS 61.872(3)(b), the agency's "official custodian shall mail the copies upon receipt of all fees and the cost of mailing." 2 If the Sheriff's Office "does not have custody or control" of any records identified in Mr. McQueen's request, it "shall notify [Mr. McQueen] and shall furnish the name and location of the official custodian of the agency's public records." KRS 61.872(4). Until the Sheriff's Office performs these functions, it stands in violation of the Open Records Act. See 09-ORD-186; 10-ORD-093.
Either party may appeal this decision by initiating action in the appropriate circuit court under 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 A public agency must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof, withheld per KRS 61.880(1) in order to satisfy its burden of proof. 04-ORD-106, p. 6; 01-ORD-232; 04-ORD-080.
2 If no records exist which are responsive to Mr. McQueen's request, the agency must promptly indicate as much to Mr. McQueen in writing (and identify the steps taken to locate potentially responsive documents per 95-ORD-96). On this issue, the Attorney General has consistently held that a public agency's inability to produce records due to their nonexistence" is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not so state is deficient. [Citations omitted.]" 02-ORD-144, p. 3; 03-ORD-207; 07-ORD-190. Accordingly, the Sheriff's Office must ascertain whether any existing records are responsive to Mr. McQueen's request, promptly advise him in writing of its findings, and briefly explain the nonexistence of such records if appropriate--nothing more, nothing less.