23-ORD-150
June 29, 2023
In re: Bobbie Coleman/Knott County Clerk
Summary: The Knott County Clerk (the “Clerk”) violated the Open
Records Act (“the Act”) when she failed to respond to a request to inspect
records within five business days.
Open Records Decision
On May 22, 2023, Bobbie Coleman (“Appellant”) emailed two requests to the
Clerk to inspect various records relating to the May 2023 primary elections.1 Having
received no response by June 1, 2023, the Appellant initiated this appeal.
Under KRS 61.880(1), upon receiving a request for records under the Act, a
public agency “shall determine within five (5) [business] days . . . 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 five (5) day period, of its decision.”
On appeal, the Clerk claims the Appellant failed to submit the request to the
Clerk’s official custodian of records. However, the Clerk does not specify who the
official custodian of records is or provide the email address of that person. The
Appellant’s request was emailed directly to the Clerk and the Clerk does not claim
that she did not receive the email. “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
1
Specifically, the Appellant sought video surveillance tapes of the election machines from 6:00 p.m.
on May 16, 2023, to 6:00 p.m. on May 17, 2023. The Appellant also sought, “in spreadsheet format (.csv
or .xlsx) [the Clerk’s] complete voter sign-in rosters for every precinct, absentee, early, and election
day voters from the May 2023 primary.”of the agency’s public records.” KRS 61.872(4) (emphasis added). If the Clerk is not
the official custodian of the Clerk’s records, she was required under KRS 61.872(4) to
notify the Appellant of that fact and provide the contact information for the official
custodian, or alternatively, forward the request to the official custodian. See Baker v.
Jones, 199 S.W.3d 749, 752 (Ky. App. 2006) (“The fact that requests may be sent by
mail or by facsimile evidences a legislative intent that delivery to the office of the
mayor was sufficient to trigger her obligation, as mayor, to comply with the
requirements of the Open Records Act. The fact that [the mayor] personally never
saw the request is irrelevant. To hold otherwise would be tantamount to encouraging
our government officers to ‘bury their heads in the sand’ to public matters with which
they are charged”); see also 19-ORD-132; 12-ORD-153. Accordingly, the Clerk violated
the Act.2
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#222
Distributed to:
Bobbie Coleman
Maurica Cornett
Timothy C. Bates
2
After the appeal was initiated, the Clerk provided responsive records other than the surveillance
video. The Clerk advised the vendor would charge a fee to retrieve the surveillance video and that the
Appellant would need to be prepared to pay that fee if she still wished to obtain the video. The Clerk
did not, however, notify the Appellant of the total anticipated cost to actually reproduce the video.