Opinion
Opinion By: Andy Beshear,Attorney General;Sarah Ellen Eads Adkins,Assistant Attorney General
Open Records Decision
The question presented on appeal is whether Jackson County Sheriff's Office violated the Open Records Act when it failed to respond to Appellant Ray Hacker's April 25, 2019, open records request.
In his request, Appellant asked to inspect various records related to "the death investigation of Gerilyn Walersky." Having received no response to his request, Appellant initiated this open records appeal by letter dated May 18, 2019. For the reasons that follow, we conclude that the Jackson County Sheriff's Office violated the Open Records Act.
On May 23, 2019, the Attorney General sent a copy of Appellant's appeal, along with the notification of receipt of open records appeal, to Paul Hayes, Jackson County Sheriff, and Ross E. Murray, Jackson County Attorney. Although that notification clearly stated that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal," the office received no response to the notification, and has not been advised what, if any, action the Sheriff's Office has taken relative to Appellant's appeal.
The Jackson County Sheriff's Office violated KRS 61.880(1) by failing to respond to Appellant's request. That statute provides, in pertinent part:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request 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.
The Jackson County Sheriff's Office had two opportunities to comply with KRS 61.880(1): by responding to Appellant's original request, and by responding to the office's notification of appeal. The Sheriff's Office failed to do so and failed to give any indication why it has not complied.
Because the Jackson County Sheriff's Office did not respond to Appellant's request or this office's notification of appeal, it advanced no legal basis for denying the request. Pursuant to KRS 61.880(2)(c), "the burden of proof in sustaining the action shall rest with the agency. . .." The Jackson County Sheriff's Office's failure to respond to the open records request is equivalent to a denial of that request without specific support in the form of "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." KRS 61.880(1); 02-ORD-116. Accordingly, the Sheriff's Office should immediately respond to Appellant's request or otherwise make the records available for his inspection.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.