Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; Thomas R. Emerson, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General as an appeal by Tony Graves in connection with his request to the Monroe County Clerk for access to documents.
In a request to the county clerk, dated August 8, 1996, Mr. Graves requested "1 copy of All Absentee Ballots from the May 25, 1993 Primary Election in the Poplar Log precinct number 9."
In his letter of appeal to this office, received August 27, 1996, Mr. Graves stated in part that the clerk's office had failed to make any type of response relative to his request for access to documents.
Apparently in response to the "Notification of Receipt of Open Records Appeal," sent by this office to both the county clerk's office and Tony Graves, Patsy J. Rich, Clerk of Monroe County, sent a letter to the Attorney General's Office, dated September 5, 1996. We do not know whether a copy of that letter was sent to Tony Graves. Ms. Rich first stated that there has been no denial of the request and she continued by saying:
Secondly, by way of further response, we enclose a copy of Mr. Graves' request. As you will note, Mr. Graves requested to inspect the "absentee ballots. " The "absentee ballots" would be no help to Mr. Graves, as there is no way that it could be ascertained from which precinct each "absentee ballot" came, and further we were unclear as to just what documents Mr. Graves was referring.
Thirdly, we were not in office in 1993, and did not know the whereabouts of the records from the 1993 May Primary Election, thus a search had to be made in the Archives room in the basement of the Courthouse before these records could be located, as we do not have extra personnel to spare and time within which to make such searches, we did not realize that Mr. Graves was in such dire need of these records that we would not be allowed ample time within which to make a search for these records. Further we were not even sure that we could locate said "absentee ballots. "
KRS 61.880(1) sets forth the obligations of a public agency in regard to its response to a request for access to public documents. The public agency is required to advise the requesting party in writing within three business days after the receipt of the request whether it intends to comply with the request. If a request is denied the agency must 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 county clerk, therefore, violated the Open Records Act by her failure to furnish the requesting party with a timely written response. See 95-ORD-159, copy enclosed, at pages 2-3.
In her letter to the Attorney General, the clerk in part stated that various records are stored in the basement of the courthouse and she does not have the time or personnel to make a prompt search for such records.
This office, in 95-ORD-132, copy enclosed, at page two, relying upon KRS 61.872(5), said in part as follows:
If the records are not readily available or the task of reproducing voluminous records, covering a long period of time, makes it virtually impossible to meet the time limitations, the circumstances might necessitate a reasonable extension of the three-day period of limitation. However, the burden would be on the public agency to provide a detailed explanation of the cause of the delay and arrange for inspection at the earliest possible date.
Thus not giving a detailed explanation as to the reason for the delay and not setting a specific date in the future when the records might be reviewed is an insufficient response by a public agency under the Open Records Act. Merely stating that the records are not available or have not been located because of a lack of staff and time will not sustain the agency's burden to justify the delay in producing the records.
On the basis of the facts available at this time we do not know whether the documents requested actually exist and can be made available. See, for example, KRS 118.385(2) pertaining to the preservation of certain voting records. In addition, as indicated by the county clerk, old paper absentee ballots, if available, would not be kept by precinct. In view of that fact we do not know whether the requesting party would want, if available, all the paper absentee ballots from a particular election or if the requesting party would modify or even abandon his request.
The county clerk has violated the Open Records Act by not making a timely written response to the request. The county clerk's statement that records are not available or have not been located because of a lack of staff and time is not sufficient to justify a delay in producing or attempting to produce the records. The county clerk should immediately take steps to ascertain if the paper absentee ballots from the 1993 primary election exist and, if so, how they are retained and filed, and then communicate that information in writing to the requesting party.
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 filed in circuit court, but the Attorney General shall not be named as a party in that action or in any subsequent proceeding.