Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; AMYE L. BENSENHAVER, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This appeal originated in a request to inspect public records submitted by Ronnie Landrum to the Breathitt County Sheriff on April 5, 1996. Those records were identified as dispatch log entries or reports made on the evening of July 15, 1991, and early morning of July 16, 1991. Mr. Landrum, who is an inmate at Eastern Kentucky Correctional Complex, received no response to his request. He initiated this appeal on April 22, 1996.
In a response to this office's "Notification of Receipt of Open Records Appeal," dated April 25, 1996, Breathitt County Sheriff Ray Clemons advised the Attorney General as follows:
My term as Breathitt County Sheriff began January 3, 1994. I do not have access to any dispatcher log entries from the previous sheriff's administration. Also, the sheriff's office is dispatched from the Jackson City Police Department, Broadway, Jackson, Kentucky 41339, phone 606-666-2424. Mr. Landrum may wish to contact that department regarding their dispatcher log entries for the time period he needs. It does not appear that Sheriff Clemons provided Mr. Landrum with a copy of this letter.
We are asked to determine if the Breathitt County Sheriff violated provisions of the Open Records Act in his handling of Mr. Landrum's request. For the reasons set forth below, and upon the authorities cited, we conclude that Sheriff Clemons's handling of this matter constituted a procedural violation of the Open Records Act. With respect to the substantive issues in this appeal, we find that the sheriff's failure to produce records which either do not exist, or are not in his custody, cannot be said to violate the provisions of the Act. However, we question whether the Breathitt County Sheriff's office, as a public agency governed by Chapter 171 of the Kentucky Revised Statutes as well as the Open Records Act, has adequately managed its records so as "to ensure the efficient administration of government and to provide accountability of government activities." KRS 61.8715.
We begin by noting that the sheriff violated KRS 61.880(1) by failing to respond in writing, and within three business days, to Mr. Landrum's request. That statute provides, in 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. An agency response denying, in whole or in part, inspection of any record shall include 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 response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Although Sheriff Clemons responded to this office's "Notification of Receipt of Open Records Appeal" on April 26, he has never responded to Mr. Landrum's request, either directly, or by sending him a copy of his April 26 letter. We urge Sheriff Clemons to carefully review the cited provision to insure that future responses conform to the Open Records Act.
Sheriff Clemons does not assert that the records which Mr. Landrum requests are not public records for purposes of the Open Records Act. Nor does he rely on any of the exceptions to the Open Records Act, codified at KRS 61.878(1)(a) through (l), in denying the request. Instead, Sheriff Clemons states that he does not have custody of dispatch logs from the previous administration. 1 Obviously, the Breathitt County Sheriff cannot provide access to records which are not in his custody or do not exist. A public agency cannot furnish access to records which it does not have or which do not exist. See, e.g., OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203; 94-ORD-65; 96-ORD-41. Our decisions in an open records dispute are therefore generally limited to two questions: whether the public agency has in its possession the document requested, and if it does, whether the document is subject to public inspection. Although Sheriff Clemons neglected to advise Mr. Landrum that he did not have custody of the dispatch log for the period in question, his failure to produce a nonexistent, or otherwise unavailable, record does not constitute a violation of the Open Records Act.
Nevertheless, the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, relating to the management of public records. In 96-ORD-88, a copy of which is attached, this office analyzed this statutory linkage in considerable depth. At page 10 of that decision, we observed:
In enacting KRS 61.8715, the General Assembly recognized that the intent of the Open Records Act, to provide full access to public records, was essentially related to, and would be promoted by, efficient records management. This, of course, is the intent and purpose of the State Archives and Records Act [codified in Chapter 1871]. Subversion of the intent of the Archives and Records Act thus constitutes subversion of the intent of the Open Records Act. If a public agency fails to discharge its statutorily mandated duty to establish effective controls over the creation, maintenance, and use of records, . . . the agency subverts the intent of the Open Records Act by frustrating full access to public records.
The loss, destruction, or removal of a public record creates a presumption of records mismanagement, but the presumption is rebuttable. Because the sheriff can provide no explanation for the removal of the records which Mr. Landrum requested, we must conclude that the Breathitt County Sheriff's Office may have failed to adequately manage its records. 2Thus, while we do not find, as a matter of law, that the sheriff violated the Open Records Act by failing to provide Mr. Landrum with copies of dispatch log entries which predate his assumption of office, those records having apparently been removed by his predecessor, we do find that the sheriff's office may have subverted the intent of the Act by failing to establish effective controls over the creation, maintenance, and use of those records. We have referred this matter to the Department for Libraries and Archives, Public Records Division, for a determination of whether the Breathitt County Sheriff's Office violated the provisions of Chapter 171, and in particular KRS 171.640 and KRS 171.710, relative to its duty to manage and preserve its public records, and to establish safeguards against removal or loss of those records. Although we are not authorized to order it to do so, we urge the sheriff's office to reexamine its records management program to insure that in the future it conforms to the cited provisions of the Open Records and State Archives and Records Acts.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 It is not entirely clear whether the Breathitt County Sheriff's office maintains its own copy of the dispatch log, or if the only copy is maintained by the Jackson County Police Department, which, according to Sheriff Clemons, serves as dispatcher for the sheriff's office. For purposes of this appeal, and in the absence of evidence to the contrary, we will assume that the sheriff maintains a copy of the log, at least while he is in office.
2 Because the records of the sheriff's office were apparently removed by the previous administration, we are reluctant to assign fault to the current sheriff. Nevertheless, we believe that there is an ongoing obligation on the part of a public officer to insure the maintenance, care, and keeping of the agency's records. Any other position would invite abuse of the Open Records Act by permitting agencies to avoid accountability from one administration to the next through the simple device of records removal.