Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Powell County Sheriff's Office ("Sheriff's Office") violated the Open Records Act in its disposition of an open records request submitted by Bobby Duane Curtis ("Appellant"). For reasons stated herein, we are unable to find that the Sheriff's Office violated KRS 61.880(1) 1 when it failed to respond to the initial open records request. However, the Sheriff's Office violated KRS 61.880(1) when it elected to provide some copies during the appeal but withheld some copies and failed to issue a written response that included "a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " The Sheriff's Office violated KRS 61.872(4) 2 by failing to provide the requester the name and location of the official custodian of the agency in possession of the requested records.
On September 16, 2018, Appellant submitted an open records request to the Sheriff's Office seeking copies of the following:
1. Powell County Sheriff's Office Budgets for Fiscal Years: 2015-2016, 2016-2017, and 2017-2018;
2. Powell County Sheriff's Office Budget vs. Actual Reports for Fiscal Years: 2015-2016, 2016-2017, and 2017-2018;
3. Powell County Sheriff's Office Civil Asset Forfeiture Records for Fiscal Years: 2015-2016, 2016-2017, and 2017-2018;
4. Powell County Sheriff's Office Payroll Reports for Fiscal Years: 2015-2016, 2016-2017, and 2017-2018; and
5. Powell County Sheriff's Office Itemized Expense Reports for Fiscal Years: 2015-2016, 2016-2017, and 2017-2018.
Having received no response to his request, Appellant initiated this appeal on October 18, 2018. On October 25, 2018, the Sheriff's Office submitted a response to our office, but did not send a copy to Appellant. The response states that the Sheriff "was not aware of its existence" and he "had not received any correspondence by mail nor. . .spoke to [Appellant] regarding his request." Nevertheless, the Sherriff's Office requested additional time to "gather all of the requested information" and deliver it to Appellant. Regarding the payroll information Appellant requested, the Sheriff stated "my office does not prepare the payroll. All payroll is prepared by the Financial Officer in the County Judge's Office." On December 3, 2018, Appellant called this Office to state that he had received records from the Sheriff's Office, but the records were not those he had requested.
With respect to Appellant's allegation that the Sheriff's Office failed to respond to the initial request, the record precludes our office from conclusively determining whether the Sheriff's Office violated KRS 61.880(1). In the absence of evidence that the Sheriff's Office received the request (such as a return receipt following delivery of a certified letter), we cannot assign error. See 02-ORD-1 (the Attorney General "is not equipped to resolve a factual dispute concerning the actual delivery" of an open records request); 05-ORD-252 (if request did not reach the agency, the agency "cannot be faulted for its failure to respond"). This office has consistently acknowledged the inability to conclusively resolve factual disputes relating to the actual delivery and receipt of open records requests and the responses by public agencies. See 12-ORD-204; 14-ORD-132.
However, the Sheriff's Office violated KRS 61.880(1) during the appeal. First, the Sheriff's Office did not copy Appellant on its response, and therefore failed to advise him that it did not have possession of payroll records. We have consistently found that a public agency's response violates KRS 61.880(1) , "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act by affirmatively indicating that no such records exist (or are in the possession of the agency). 04-ORD-205, p.4; 11-ORD-122; 12-ORD-056. The Attorney General recognizes that a public agency cannot afford a requester access to a nonexistent record or those records it does not have in its possession. 07-ORD-190, p. 6, 06-ORD-040. However, the Sheriff's Office had a duty to inform Appellant that it did not possess the payroll records, and violated the Act in failing to do so.
The Sheriff's Office also violated KRS 61.880(1) by failing to issue a written response that included "a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " The Sheriff's Office elected to provide copies of records it possessed, but denied some records. In such circumstances, the Act required the Sheriff's Office to issue a written response. When a public agency denies records, in whole or in part, KRS 61.880(1) requires the agency to issue a written response that includes "a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " In construing that provision, the Kentucky Court of Appeals stated: "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208; 07-ORD-226; 12-ORD-211; 17-ORD-179. Therefore, the Sheriff's Office was required to provide Appellant a written response that stated the specific exception that authorized withholding records and explained how the exception applied. The Sheriff's Office violated KRS 61.880(1) when it failed to issue such a written response, even though it provided some copies in response to the appeal.
In addition, the Sheriff's Office violated KRS 61.872(4) by failing to direct Appellant to the "County Judge's Financial Officer" for the payroll records. In situations where the agency receiving a records request does not have custody or control of some or all of the records requested, KRS 61.872(4) directs the agency to notify the applicant and furnish him with the name and location of the custodial agency. The Sheriff's Office stated in the appeal response that it does not possess the requested payroll records, and those records are in the possession of the Financial Officer. However, the Sheriff's Office did not provide Appellant with a copy of that written notice. The Sheriff's Office also failed to provide the name and location of the Financial Officer. As such, the Sheriff's Office violated KRS 61.872(4).
A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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