Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Clark County Sheriff Gary Lawson violated the Open Records Act in denying Ray E. Caudill's August 26, 2002, request for information pertaining to special deputies appointed by Sheriff Lawson. For the reasons that follow, we find that although Sheriff Lawson was not statutorily obligated to honor Mr. Caudill's request for information, as opposed to reasonably described public records, the argument he advanced in support of his denial of access to records containing the information sought is legally untenable. In so holding, we overrule OAG 76-655 relating to "honorary deputy sheriffs."
In his August 26 request, Mr. Caudill asked that the Sheriff provide him with twelve categories of information, including:
1. The name and address of each individual appointed by you and now serving as special deputy.
2. For each individual listed in your response to No.1, list the law enforcement training provided, the dates the training was provided; and the agency providing the training.
3. The name and address of each individual that has served as your special deputy since July 1, 2001, and no longer serving as special deputy.
4. For each individual listed in your response to No.3, list the law enforcement training provided; the dates the training was provided; and the agency providing the training.
5. The name and address of each individual that has served as your special deputy since January 1, 1999, and no longer serving as special deputy.
6. For each individual listed in your response to No.5, list the law enforcement training provided; the dates the training was provided; and the agency providing the training.
Sheriff Lawson responded on August 27 by affording Mr. Caudill access to records containing information that satisfied requests 7, 8, 9, 10, and 11. With reference to request 12, he explained that his office maintained no responsive records. Sheriff Lawson denied requests 1 through 6, advising Mr. Caudill that "per OAG 76-655, the records pertaining to Special Deputies are not subject to the Open Records Act. " Mr. Caudill's appeal focuses on records containing the information identified in requests 1 through 6.
In OAG 76-655, the Attorney General was asked to determine whether the Kentucky Open Records Act, then in its infancy, required the names of all honorary deputy sheriffs to be made public upon request. The requester explained that honorary deputy sheriffs have no rights, powers, duties or responsibilities and receive no compensation. With few advisory opinions and no case law to provide guidance, the Attorney General opined that because the Kentucky Revised Statutes do not mention honorary deputy sheriffs:
[t]he naming of persons to the honorary post . . . is not an official function of the sheriff's office but is a personal activity and therefore is not subject to the strictures of the Open Records Act.
On appeal, Mr. Caudill expresses the belief that OAG 76-655 does not apply to special deputies who are appointed under KRS 70.045(1) and (2), and who possess law enforcement powers, emphasizing that his request pertained to records containing information relative to these appointees and not "honorary deputy sheriffs."
We agree with Mr. Caudill that OAG 76-655 is inapplicable to records containing the information he seeks relative to special deputies. Further, we find that the legal reasoning set forth in OAG 76-655 is flawed and hereby overrule that opinion. Records pertaining to the appointment of honorary deputy sheriffs, to the extent that the practice of appointing honorary deputy sheriffs continues, are subject to the Open Records Act and must be disclosed upon request unless otherwise exempt under one or more of the exceptions to public inspection.
We begin by noting that Mr. Caudill's request was not framed as a request for reasonably described public records but was instead framed as a request for information. In an early opinion, the Attorney General recognized that "[t]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. On this basis, we have consistently held that public agencies are not statutorily obligated to honor requests for information as opposed to requests for public records. For example, in 93-ORD-51 this office held that the Open Records Act:
was not intended to provide a requester with particular "information," or to require public agencies to compile information to conform to the parameters of a given request. See, e.g., OAG 76-375; OAG 79-547; OAG 81-355, OAG 86-51; OAG 87-84; OAG 89-77; OAG 89-81; OAG 90-19. Rather, the Law provides for inspection of reasonably identified records.
93-ORD-51, p. 3. Mirroring this view, in OAG 87-84, we observed:
Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
OAG 87-84, p. 3. These decisions were premised on the language of the statutes themselves, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records ") (emphasis added).
We hasten to note, however, that Sheriff Lawson did not deny the disputed requests, or the other requests Mr. Caudill submitted, on this basis. Commendably, he provided Mr. Caudill with records containing information responsive to five of the undisputed requests and explained that his office maintained no record containing the information sought in the sixth remaining request. In denying the six disputed requests, Sheriff Lawson relied on OAG 76-655. As noted, we do not believe that this opinion provides a sufficient legal basis for denying requests for records containing information relating to special deputies.
Appointment of a special deputy under either KRS 70.045(1) or (2) is clearly an official function of the sheriff's office and one in which the public has a legitimate interest. Accordingly, we find that the Clark County Sheriff's reliance on OAG 76-655 as the basis for denying Mr. Caudill access to records containing information relating to past and present special deputies, and the law enforcement training they received, is misplaced. Although we believe that the Sheriff may withhold certain personal information relating to the special deputies, including but not limited to, home addresses and social security numbers, under authority of KRS 61.878(1)(a) and
Zink v. Commonwealth, Ky.App., 902 S.W.2d 825 (1994), we otherwise find that records containing the information sought are public records within the meaning of KRS 61.870(2) 1 as records that are "prepared, owned, used, in the possession of or retained by a public agency" and must be disclosed.
By the same token, we find that records pertaining to honorary deputy sheriffs are public records insofar as they are "prepared, owned, used, in the possession of or retained by a public agency" and notwithstanding the fact that the honorary post does not owe its existence to statute or regulation. We disagree with the characterization of a sheriff's appointment of an honorary deputy as a "personal activity," and therefore conclude that records relating to such appointment are "subject to the strictures of the Open Records Act. " OAG 76-655, p. 2. Moreover, although honorary deputies possess no actual authority, the apparent authority that the title arguably carries, and the privileges that might be procured by virtue of the title, make their identities a matter of legitimate public concern. Accordingly, we overrule OAG 76-655.
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.
Ray E. Caudill82 Mockingbird Valley RoadWinchester, KY 40391
Gary O. LawsonClark County SheriffJames Clark Judicial CenterP.O. Box 218Winchester, KY 40392-0218
Footnotes
Footnotes
1 KRS 61.870(2) defines the term "public record" as
[A]ll books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.