00-ORD-216

00-ORD-216

November 16, 2000

In re: John Rogers/Bullitt County Jailer

Open Records Decision

        The question presented in this appeal is whether the Bullitt County Jailer violated the Open Records Act in his disposition of John Rogers’ October 2, 2000, request for copies of:

[a]ll judgment of convictions [sic], committment orders [sic], uniform citations, detention orders, release or discharging documents, “booking” documents, [and] log book references [relating to his October 1993 to October 1994 incarceration in the Bullitt County Jail for] driving while suspended, driving with no insurance, criminal mischief, speeding, [and] running a stop sign.

Mr. Rogers received no response to his request, prompting him to initiate this open records appeal.

        In a response directed to this office following commencement of Mr. Rogers’ appeal, Assistant Bullitt County Attorney Robert C. Bishop advised that “[t]he prior Bullitt County Jailer, upon his leaving office, removed records from the Bullitt County Jail, making same unavailable to the present Bullitt County Jailer, Danny Fackler.”  Additionally, Mr. Bishop noted that the Bullitt County Jailer is not the custodian of uniform citations or judgments of conviction, but that instead these records were reposed in the custody of the Bullitt Circuit Court Clerk. Finally, Mr. Bishop observed that Mr. Rogers’ May 2, 2000, open records request did not contain his social security number. He explained that during the period identified in Mr. Rogers’ request, two prisoners named John Rogers were incarcerated in the jail. Absent Mr. Rogers’ social security number, “the Bullitt County Jailer could not attempt to provide any documents, as doing so might divulge private information related to a different individual.”

        For the reasons that follow, and upon the authorities cited, we conclude that the Bullitt County Jailer’s failure to respond to Mr. Rogers’ request constituted a procedural violation of the Open Records Act. With respect to the substantive issues in this appeal, we find that the jailer’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 urge the office of the Bullitt County Jailer, as a public agency governed by Chapter 171 of the Kentucky Revised Statutes as well as the Open Records Act, to manage its records so as “to ensure the efficient administration of government and to provide accountability of government activities.”  KRS 61.8715. In addition, we note the inconsistency in the response as to how the jailer determined that two John Rogers were incarcerated in the Bullitt County Jail during the period identified in Mr. Rogers’ request if all records were removed by the previous jailer at the expiration of his term. If any responsive records remain in Jailer Danny Fackler’s custody, he must disclose them to Mr. Rogers upon proof of identity and prepayment of a reasonable copying charge.

        We begin by noting that the Bullitt County Jailer violated KRS 61.880(1) by failing to respond in writing, and within three business days, to Mr. Rogers’ request.¹  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 Mr. Fackler responded to this office’s “Notification of Receipt of Open Records Appeal” on October 24, 2000, through Assistant County Attorney Bishop, he did not respond to Mr. Rogers’ request until he furnished him with a copy of his October 24 response. This inaction constituted a violation of KRS 61.880(1). We urge Mr. Fackler to review the cited provision to insure that future responses conform to the Open Records Act.

        The Bullitt County Jailer does not assert that the records which Mr. Rogers requested 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, the jailer states that the requested records are not available to him because they were removed by the previous jailer at the end of his term.²  Obviously, the Bullitt County Jailer cannot provide access to records which are not in his custody. A public agency cannot provide access to records which it does not have or which do not exist. See, e.g., OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203; 94-ORD-65; 96-ORD-41. Our decisions in open records disputes 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. Mr. Fackler’s failure to produce records that were physically removed by the previous jailer at the expiration of his term, and are therefore unavailable, 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, 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.

Because the records of the Bullitt County Jailer’s office were allegedly removed by the previous administration, we are reluctant to assign error to the current jailer. However, we believe the Bullitt County Jailer should be aware that pursuant to KRS 171.720, he should take the action provided for in the statute to obtain the return of any public records improperly removed by his predecessor.³ Thus, we do not find, as a matter of law, that the jailer violated the Open Records Act by failing to provide Mr. Rogers with copies of responsive records that predate his assumption of office since those records were allegedly removed by his predecessor.

        From Mr. Bishop’s response, we deduce that some responsive records may still reside in the current jailer’s custody. He states, for example, that two individuals named John Rogers were held in the Bullitt County Jail in the period between October, 1993, and October, 1994, and that a specific identifier is required before those records can be disclosed. On this issue, the Attorney General has recognized that this may be “a reasonable response by the agency to obtain specific information identifying the requester to enable it to do a complete search for records pertaining to the requester.”  99-ORD-9, p. 3. Although KRS 61.872(2)⁴ does not authorize a public agency to require a records applicant to furnish his social security number as a precondition to furnishing him with public records, Mr. Rogers may wish to provide the Bullitt County Jailer with this identifier to insure that records responsive to his request are disclosed to him. The Bullitt County Jailer may, of course, require prepayment of a reasonable copying charge not to exceed ten cents per page, as well as postage charges, before mailing those responsive records that still reside in his custody to Mr. Rogers. We urge the parties to initiate a dialogue concerning these records so that Mr. Rogers’ rights are enforced, and the Bullitt County Jailer’s duties are discharged.

        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.

Albert B. Chandler III

Attorney General

Amye L. Bensenhaver

Assistant Attorney General

#628

Distributed to:

John Rogers, #136692

Frankfort Career Development Center

P.O. Box 538

Frankfort, KY 40602

Danny Fackler

Bullitt County Jailer

P.O. Box 216

Shepherdsville, KY 40165

Robert C. Bishop

Assistant Bullitt County Attorney

129 W. Fourth Street

P.O. Box 6539

Shepherdsville, KY 40165