24-ORD-042
February 20, 2024
In re: Jimmy Henderson/Logan County Sheriff’s Office
Summary: The Logan County Sheriff’s Office (“the Sheriff’s Office”)
violated the Open Records Act (“the Act”) when it did not respond to a
request to inspect records. The Sheriff’s Office did not violate the Act
when it denied portions of three requests that sought information
without describing public records to be inspected. The Sheriff’s Office
also did not violate the Act when it did not provide records that do not
exist.
Open Records Decision
Jimmy Henderson (“Appellant”) submitted three requests to the Sheriff’s
Office on October 27, 2023, November 10, 2023, and December 9, 2023, respectively.
Each request inquired about county taxes.1 In response to the first request, the
Sheriff’s Office stated it “does not maintain or curate any of the records requested in
[the Appellant’s] open records request” and directed the Appellant to the Kentucky
Department of Revenue. In response to the second request, the Sheriff’s Office again
stated it “does not maintain or curate any of the records in [the Appellant’s] open
1
Specifically, the first request asked, “1. When did the Law [related to seven different county taxes]
go into effect?”; “2. What year of each?”; “3. Who was the person(s) who voted each of these taxes into
law?”; “4. Their oath of office to the Constitution?”; and “5. Where is it filed, book and page number[?]”
The Appellant also asked “to see the law on each individual category listed on the tax bill along with
the Oath of Office of each.” In his second request, the Appellant asked “to see the Law on the taxes
place[d] on [his] property tax Statement” and “1. When each was voted into Law?”; “2. Year?”; “3. Who
was the person(s) who voted them in”, “4. Their Oath of Office?”; and “5. Where is it filed, book and
page number[?]” The third request identified a county school tax and asked “1. [D]id the school tax
originate from the sheriff’s office?”; “2. Who authorized it and when?”; “3. Who voted it into law”; “4.
Where is it filed, book and page number[?]”; “5. [W]hich branch [of government] authorized to separate
the power from the branches of government to the magistrates?” The Appellant also stated, “If it’s the
sheriff’s school tax I would think the sheriff’s office would keep a copy of their documents.” Finally, he
asked for a copy of the Sheriff’s oath of office.records request.” The Sheriff’s Office did not respond to the Appellant’s third request.
This appeal followed.
First, regarding the Appellant’s third request, the Sheriff’s Office explains that
it prepared a response but failed to send it to the Appellant “due to an oversight.”
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 Sheriff’s Office admits it failed to respond to the Appellant’s third request within
five business days. Accordingly, the Sheriff’s Office violated the Act.2
On appeal, the Sheriff’s Office states it “has provided all of the documents that
[the Appellant] requested that are in [its] possession” and the Appellant’s remaining
requests ask the Sheriff’s Office to “research and retrieve the records of various state
and local legislative bodies that are reflected on the annual tax bill that the Sheriff
is statutorily mandated to collect.” In short, the Sheriff’s Office claims that the
remaining requests either seek information or records the Sheriff’s Office does not
possess.
Most of the Appellant’s requests identify certain taxes and ask questions
related to when those taxes were enacted, who enacted them, where those taxes are
filed, and what authority supported the taxes. These requests do not describe public
records to be inspected, but rather, seek information. See, e.g., 23-ORD-257 (requester
asked for “the full names” of correctional officers on duty at a specific time); 22-ORD-
054 (requester asked “who ordered” a letter to be written, how much the author was
paid, and “why” the letter “was circulated”). The Act does not require public agencies
to answer interrogatories or fulfill requests for information. Rather, it only requires
public agencies to produce public records for inspection. See KRS 61.872(2)(a)
(requiring a request to inspect records to include, inter alia, a description of “the
records to be inspected”); Dep’t of Revenue v. Eifler, 436 S.W.3d 530, 534 (Ky. App.
2013) (“The [Act] does not dictate that public agencies must gather and
supply information not regularly kept as part of its records.”). Accordingly, the
Sheriff’s Office did not violate the Act when it denied the Appellant’s requests because
they did not describe any public records to be inspected.
2
The Sheriff’s Office states it has since provided the Appellant with its prepared response and
records responsive to his request for a copy of the Sheriff’s oath of office.Some parts of the Appellant’s requests, however, did describe records to be
inspected. Specifically, in his first and second requests, he identified certain laws he
wanted to see, and he requested the oaths of office of the persons who voted in favor
of those laws. On appeal, the Sheriff’s Office maintains that those records either do
not exist or are not in its possession. Once a public agency states affirmatively that a
record does not exist, the burden shifts to the requester to present a prima facie case
that the requested record does or should exist. See Bowling v. Lexington–Fayette Urb.
Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). If the requester makes a prima facie case
that the records do or should exist, then the public agency “may also be called upon
to prove that its search was adequate.” City of Fort Thomas v. Cincinnati Enquirer,
406 S.W.3d 842, 848 n.3 (Ky. 2013) (citing Bowling, 172 S.W.3d at 341). Here, the
Appellant has not made a prima facie case that the Sheriff’s Office possesses
additional records.3 Therefore, the Sheriff’s Office did not violate the Act when it did
not provide them.
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.
Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#033
Distributed to:
Jimmy Henderson
Stephen Stratton
Forrest Winchester
3
Rather, the county clerk is the public agency responsible for recording the oaths of office for county
officials. See KRS 62.020(2)(d). Further, as the fiscal court is the agency responsible for enacting
ordinances pertaining to county taxes, the fiscal court would be the agency in possession of the specific
ordinances the Appellant seeks. See, e.g., KRS 65.125.