Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the responses of the Department of Corrections and Office of the Ohio County Sheriff to separate requests made by Roger Shelton violated the Open Records Act. We conclude that, with the exception of a procedural violation by the Sheriff's Department, the responses were proper and did not constitute a violation of the Act.
By written request dated January 9, 2002, addressed to Jim Peck, Probation and Parole, Mr. Shelton requested:
[A] copy of the video from the convenient store in Centertown that you have mentioned in Both the Notice of Preliminary Hearing and was again mentioned in the Special Supervision Report that you just recently sent to me. It would be the video that allegedly recorded me in the possession of containers of Methamphetamine, and also a handgun.
In response to Mr. Shelton's request, Mr. Peck advised:
Again, I do not have the video. This was a criminal matter. You may contact the Ohio Co. Sheriff Dept. for access to the video. I only keep matters that pertain to Parole in your file.
By letter dated January 16, 2002, Mr. Shelton requested a copy of the video tape from the Office of the Ohio County Sheriff. In his request, Mr. Shelton stated, in part:
I am requesting a copy of the video from the Convenient store in Centertown Ky., in which information allegedly came from and this information was given to Jim Peck by the Ohio County Sheriff's Department. This information was also used against me for the purpose of violating my Parole. This same information was also used by the Ohio Sheriff's Department to obtain a Search Warrant for my residence on/about February 6th 2001.
By letter dated January 17, 2002, Mr. Shelton, in addition to the video tape, requested:
[A]ny and all taped statements from the clerk of the store also any signed statements that were given to verify the tapes or the alleged allegations that were to be on these tapes.
In his letter of appeal, dated February 13, 2002, Mr. Shelton indicated that he had received no responses to these requests. Mr. Shelton also enclosed with his letter of appeal a copy of a Probation and Parole, Special Supervision Report, concerning his activities in the Centertown convenient store which states his actions there were "recorded on the convenient store surveillance cameras."
After receipt of Notification of the appeal and a copy of Mr. Shelton's letter of appeal, both the Department of Corrections and Office of the Ohio County Sheriff provided this office with a response to the issues raised in the appeal.
Responding on behalf of the Department, M. Lee Turpin, Counsel for the agency, explained:
Appellant [Mr. Shelton] made an Open Record Request on January 9, 2002 addressed to Jim Peck, Probation and Parole Officer. He requested a copy of a video from a convenient store that allegedly recorded him in possession of methamphetamine. Mr. Peck responded on January 14, 2002 that he was not in possession of this video. Mr. Peck directed Appellant to contact the Ohio County Sheriff Department (See Attachment 1.) Pursuant to KRS 60.872(4) this is all that is required.
In his appeal, Appellant states that Mr. Peck did respond to his initial request and directed him to the Ohio County Sheriff Department. Appellant made a subsequent request to that agency. He claims to have received no response. The Probation and Parole Office does not have any control over the activities or policies of the Ohio Sheriff Department. The Probation and Parole Office did all that is legally mandated. It does not have custody or a copy of the requested video. It directed Appellant to the agency believed to have it.
Elvis Doolin, Ohio County Sheriff, responded to Mr. Shelton's letter of appeal on behalf of his Department. In his response, Sheriff Doolin advised this office:
In response to your letter dated 02/20/02 this is to advise that the Ohio County Sheriff's Department does not have a videotape or any written statements pertaining to Mr. Roger Shelton's case log #20020087.
A search warrant was obtained to search Mr. Shelton's residence through confidential informants. Although a small number of items were discovered and seized including drug paraphernalia, syringes, prescription pills not in a proper container and swabs, the Ohio County Sheriff's Department brought no charges against Mr. Shelton. I understand a copy of the search was forwarded to Mr. Shelton.
We are asked to determine whether the responses of the two agencies violated the Open Records Act. For the reasons that follow, we conclude that the responses, with the exception of a procedural deficiency by the Office of the Ohio County Sheriff's Department, did not constitute a violation of the Act.
In his letter of appeal, dated February 13, 2002, Mr. Shelton complains that the Sheriff's Department had not responded to his January 16 and 17, 2002 open records requests. KRS 61.880(1) requires a public agency to respond to an open records request within three business days after receipt of the request. The failure of the Department to respond within this time period constituted a procedural violation of the Open Records Act.
Addressing the substantive issues, the Department of Corrections, Probation and Parole, advised that it did not have the video tape. It further advised that a request for the tape should be directed to the Ohio County Sheriff's Office. This response was in substantial compliance with KRS 61.872(4), which requires that, "[i]f 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. Thus, we conclude this response did not violate the Open Records Act. The Sheriff's Office also advised Mr. Shelton that it did not have a copy of the video tape or any written statements pertaining to Mr. Roger Shelton's case.
This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. Obviously, a public agency cannot afford a requester access to records that it does not have. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Both agencies affirmatively advised that it did not have the records Mr. Shelton requested. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
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.
Distributed to:
Roger Shelton, #100445-619Marion Adjustment Center95 Raywick RoadSt. Mary, KY 40063
Elvis DoolinOhio County SheriffOhio County CourthouseP.O. Box 186Hartford, KY 42347
Jim PeckParole/Probation Officer100 East Second StreetOwensboro, KY 42303
M. Lee TurpinDepartment of CorrectionsOffice of General Counsel2439 Old Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40601