23-ORD-275
October 19, 2023
In re: Rebecca Barnett/Powell County Sheriff’s Office
Summary: The Powell County Sheriff’s Office (“the Sheriff’s Office”)
violated the Act when it did not respond to a request to inspect records
within five business days of receiving it. The Sheriff’s Office also violated
the Act when its untimely response failed to cite an applicable exception
to the Act and explain how it applied to records withheld.
Open Records Decision
On September 13, 2023, Rebecca Barnett (“Appellant”) emailed a request to
the Sheriff’s Office seeking copies of various records related to a criminal case.1 After
receiving no response from the Sheriff’s Office by September 21, 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.” Although
it carries the burden of proof in sustaining its action, the Sheriff’s Office does not
explain on appeal why it failed to respond to the Appellant’s request. See
KRS 61.880(2)(c). As such, the Sheriff’s Office violated the Act when it failed to
respond to the Appellant’s request within five business days.
1
Specifically, she sought the 911 call logs from September 26-28, 2019; the entire case file related
to an identified individual; and the Sheriff’s Office’s policies and procedures related to investigating a
report of a missing person.After this appeal was initiated, the Sheriff’s Office issued a response to the
Appellant’s request. Specifically, the Sheriff’s Office directed the Appellant to submit
her request for 911 calls to the Powell County 911 Dispatch. See KRS 61.872(4) (“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 of the agency’s public records.”). The
Sheriff’s Office also stated it did not possess any specific policies or procedures for
investigating reports of missing persons, and in doing so, discharged its duty under
the Act. See, e.g., 23-ORD-086 (if requested records do not exist, a public agency must
affirmatively say so, and the burden then shifts to the requester to establish a prima
facie case responsive records do or should exist (citing Bowling v. Lexington–Fayette
Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005)).
However, in response to the Appellant’s request for the case file related to an
identified person, the Sheriff’s Office stated only that it was “an ongoing investigation
and there is an exception that information cannot be released until the case is closed.”
If an agency denies a request to inspect records, it must cite the exception authorizing
its denial and explain how the exception applies to the records withheld. KRS
61.880(1). A “limited and perfunctory” response violates the Act. Edmondson v. Alig,
926 S.W.2d 856, 858 (Ky. App. 1996). Because the Sheriff’s Office failed to cite an
applicable exception, or state how it applied to withhold the requested case file, its
“limited and perfunctory” response violated the Act.2 Id.
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.
2
The Office’s finding that the Sheriff’s Office response was deficient should not be considered an
opinion that the records are indeed subject to inspection. They may be exempt under KRS 61.878(1)(h)
or KRS 17.150(2), which is incorporated into the Act by KRS 61.878(1)(l). But the Office refrains from
deciding that issue, which is not properly presented in this appeal.Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#413
Distributed to:
Rebecca Barnett
Danny Rogers