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 the Pulaski County Sheriff violated the Open Records Act in the disposition of Terry Wayne Pierce's "October 27, 2002 request and . . . November 12, 2002 request, both of which were clearly marked as being pursuant to Kentucky Open Records Law. " For the reasons that follow, we find that although the Sheriff erred in failing to respond to these requests, he did not violate, or otherwise subvert the intent of, the Open Records Act in the disposition of Mr. Pierce's request. It is the opinion of this office that because Mr. Pierce did not "describ[e] the record[s] to be inspected" 1 in either of his "clearly marked . . . Open Records" requests, the Sheriff could neither honor nor deny those requests.
In his October 27, 2002, letter, the subject line of which reads "Return of properties/monies," Mr. Pierce obliquely references earlier correspondence "concerning certain confiscated/ seized properties," and expresses his dissatisfaction with the adequacy of the Sheriff's efforts "to resolve this matter." 2 The subject line of Mr. Pierce's November 12 letter reads "Request for Records," but again contains no description of the records sought. Mr. Pierce indicates that he is:
writing you once again in good-faith believing that your are not deliberately attempting to subvert the Open Records Law of this state which requires you to supply records and/or an explanation as why the records will not be provided, since I have in good-faith offered to pay the expense for copying and mailing those records to me in order that I may attempt to seek the return of monies and/or property confiscated/ seized from me and my person in 1999.
I am at this time sending a copy of this request to the Office of Attorney General and will be seeking a review by that office in the next few weeks if I haven't, at that time, received a response from you about these sought after records. Also, you have a copy of the Court's Order reflecting my other legal option, which I will not hesitate to utilize if it becomes necessary.
(Sic.) As in his earlier correspondence, Mr. Pierce concludes that his request "is made pursuant to Kentucky Open Records Law as codified in Kentucky Revised Statutes, Chapter 61.870 through 61.884."
Having received no response to either of these letters, Mr. Pierce initiated this appeal on November 22, 2002, asserting that "a Court Order revealed that [he] was entitled to confiscated/ seized properties and monies held by the Pulaski County Sheriff's department," but failing once again to describe the records to be inspected.
In a response dated December 3, 2002, Assistant Pulaski County Attorney F. G. Neikirk defended the Sheriff's position. He expressed the view that "Mr. Pierce's request does not fall within the purview of the open records statute," explaining that Mr. Pierce is instead, "attempting to have returned to him money seized as evidence in prior criminal cases which money Sheriff McWhorter acknowledged by letter was in his evidence lockers." Mr. Neikirk suggested that Mr. Pierce's remedies lie in the Pulaski Circuit Court through appropriate legal action and not in the Office of the Attorney General through an open records appeal. We agree.
The Attorney General has long recognized that although the purpose of the Open Records Act is to permit "the free and open examination of public records," the public's right of access is not absolute. KRS 61.871 . As a precondition to inspection, a requesting party must identify with reasonable particularity the documents that he or she wishes to inspect. Thus, if a public agency is to provide access to public documents, the requester must identify them with sufficient clarity to enable the agency to locate and make them available. If the requester cannot describe the documents he wishes to inspect with sufficient specificity, there is no requirement that the public agency conduct a search for such documents. See, 94-ORD-12; 02-ORD-115. As noted, KRS 61.872(2) authorizes the official custodian of an agency's records to "require written application, signed by the applicant and with his name printed legibly on the application describing the records to be inspected. " (Emphasis added.)
The "written applications" submitted by Mr. Pierce were deficient insofar as they failed to describe records to be inspected. Having reviewed those applications, we find that although he identified a subject, namely "return of monies and/or property confiscated/ seized" from him in 1999, he did not identify a record or records relating thereto, such as a property inventory or property receipt, which he wished to inspect. For this reason, we agree with the Pulaski County Sheriff that Mr. Pierce's October 27 and November 12, letters "do[] not fall within the purview of the open records statute."
Nevertheless, these deficiencies did not relieve the Sheriff of his duty to respond to Mr. Pierce's applications in writing and within three business days. Each is identified as having been submitted "pursuant to Kentucky Open Records Law, " thus necessitating a timely written response pursuant to KRS 61.880(1). 3 The Sheriff's response might have consisted of the above-quoted portion of Mr. Neikirk's letter to this office, or similar language aimed at notifying Mr. Pierce that his written applications would not be honored because they failed to describe any records to be inspected. We urge the Sheriff to review KRS 61.880(1) to insure future compliance with the procedural requirements of the Open Records Act.
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 KRS 61.872(2).
2 The text of Mr. Pierce's October 27 request reads as follows:
I received and appreciate your October 21st 2002 reply correspondence to me concerning certain confiscated/ seized properties. However, the property I referred to in my letter to you dated back to a case in 1999 which was ultimately dismissed by the Court and after moving via motion for a return of that property, I was informed via order of the court to either file a civil action against your office or simply write a letter in an attempt to resolve this matter formally.
I do appreciate your attempt to review the files in order to resolve this matter, but you'll have to search a little farther back than the case(s) you've referred to.
I also appreciate you reminding me of the other property or $ 480.00. Mr. Burton and Ms. Hardwick are not claimants to this property and I'll ask that this property be returned to me also at the address provided above in the righthand corner of this correspondence for your convenience.
My prior correspondence may have been a little difficult for you to understand, in that it was not meant to be addressed to the late Mr. Sam Catron, but to the custodian of records for him and/or that office, because Kentucky Constitution (171 requires each agency to keep records and documents exercising their authoritative function.
This request, like my prior request, and all requests hereafter is made pursuant to the provisions of the Open Records Law as codified within Kentucky Revised Statutes Capter [sic] 61.870 thru 61.884.
3 KRS 61.880(1) provides as follows:
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.