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 Office of the Fleming County Sheriff violated the Open Records Act in the disposition of Minnie M. McCord's request for all records relating to her. For the reasons that follow, we find no violation of the Act.
Ms. McCord originally submitted her request to Sheriff Gary Kinder on May 11, 2015, referencing her acquittal on a misdemeanor charge and asking for the following:
1. Any and all records relating to me, Minnie McCord, that mention me by name pursuant to KRS 61.884.
2. Any and all copies of public record relating to Case No. 14-M-00047, Fleming District Court, maintained on your agency's premises.
3. Pursuant to KRS 61.870 to KRS 61.884 , Any and all public records relating to me including all such records even if they are not subject to inspection under an exemption and therefore not 'open records', including emails, databases, and other electronically generated and/or stored documents and or recordings, and any and all public records that are not maintained on the agency's premises. If there are public records that are not maintained on the agency's premises, please provide me with the location and contact information to obtain those records.
Having received no response, Ms. McCord made an identical request on May 27, 2015, to which Sheriff Kinder responded on May 29, 2015:
We have no files pertaining to case 14-M-00047 as it was not worked/investigated by our office. This case was handled by the Kentucky State Police. Our office was possibly used for questioning but no deputy was involved in the proceedings of the case. Any copies of 14-M-00047 would be on file at the Circuit Clerks Office in the Justice Center.
Our office did serve papers for the trial to the following people: Harlan Davis, served 8/25/2014, Land Cooper 8/27/2014 were served by Deputy # 237. Sheriff Scotty Royse, # 247, served subpoenas to Brooklyn Fields served on 8/25/2014, Matt McCord on 8/22/2014 and faxed a copy of subpoena to be served on Kyle Hamilton at his place of employment on 8/27/2014. You will find a record of service for each of these enclosed. Our office does not keep copies of papers that are served only a record of service. We have no other records, recordings, email etc. involving this case.
Ms. McCord's appeal to the Attorney General was received on June 17, 2015. She alleges that the sheriff's office ignored her request for records mentioning her or relating to her but not related to the misdemeanor case.
On June 22, 2015, Sheriff Kinder responded to the appeal, stating that other than the service records "we have no files of any kind on record in our office." He indicates that the "belongings" of the previous sheriff have also been searched and contain no records on Ms. McCord. The only records that the sheriff's office did not previously provide to Ms. McCord--records of service of subpoenas in a Kentucky Board of Education case--were enclosed with the sheriff's June 22 response. Accordingly, the sheriff represents that all responsive records in the possession or control of his office have now been produced.
We find no substantive violation of the Open Records Act. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states it does not possess.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial, we do not believe that this appeal warrants additional inquiries, as the sheriff's office has adequately explained the absence of additional records. Accordingly, we find that the Office of the Fleming County Sheriff did not substantively violate the Open Records Act.
We do, however, find a procedural violation in connection with Ms. McCord's original May 11, 2015, request, insofar as the sheriff's office received the request and did not respond. KRS 61.880(1) requires a written response to an open records request within three business days. Since the sheriff does not claim that the May 11 request was never received, nor does he provide an explanation for why no response was issued, we are compelled to find a procedural violation of KRS 61.880(1).
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.