Opinion
Opinion By: Albert B. Chandler III, Attorney General; Gerard Gerhard, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Clay County Sheriff (Sheriff's Office) violated the Open Records Act in failing to respond to John Widner's request for a "copy of your policy and procedure that outline your regulations of taking into custody and holding evidence, the policy outlining your keeping of evidence." Having received no response to his request, dated March26, 2003, Mr. Widner initiated this open records appeal by letter dated April 8, 2003, and received in this office on April 9, 2003. For the reasons that follow, we conclude that the Sheriff's Office violated the Open Records Act.
On April 10, 2003, the Attorney General sent a copy of Mr. Widner's letter of appeal, along with our notification of receipt of open records appeal, to the Clay County Sheriff and the Clay County Attorney. Although that notification clearly states that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal," we received no response to our notification, and have not been advised what, if any, action the Sheriff's Office has taken relative to Mr. Widner's appeal.
The agency's failure to respond to Mr. Widner's request in a proper and timely fashion constitutes a violation of KRS 61.880(1). That statute provides:
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.
The Sheriff's Office had not one, but two opportunities to comply with KRS 61.880(1), by responding to Mr. Widner's original request, and by responding to his request upon receipt of this office's notification of appeal. The agency failed to do so.
Having provided no response to Mr. Widner's request, and, thus, no legal basis for denying him access to the requested records, and none being apparent, the Sheriff's Office is obligated, if it has records which conform to the request, to mail the requested records to Mr. Widner. The agency may require prepayment for copies, not to exceed ten cents per page, and any postage charges incurred. If the Sheriff's Office does not have records that conform to the request, the requester should be so advised, in writing.
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 proceedings.