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 actions of the Office of the Campbell County Sheriff relative to the open records request of Chris Henson violated the Open Records Act. For the reasons that follow, we conclude that the failure of the Office of the Campbell County Sheriff to timely respond to Mr. Henson's request, as required by KRS 61.880(1), constituted a procedural violation of the Act, but that the agency's substantive response was proper and did not violate the Act.
In his letter of appeal to this office, dated September 12, 2003, Mr. Henson states that he submitted the same open records request to the Campbell County Sheriff's Department asking for copies of offense/incident reports in reference to eleven separate individuals, on three separate occasions (June 13, July 28, and August 11, 2003), and as of the date of his letter of appeal he had yet to receive a response to his request.
In a letter dated September 22, 2003, John D. Dunn, Jr., Campbell County Sheriff, advised Mr. Henson:
In regards to your request for records. As I previously stated the Sheriff is not the keeper of any records that you have requested. These records are kept by the circuit court clerk.
If I had these records I would send them to you.
After receipt of Notification of the appeal and a copy of the letter of appeal, Paul H. Twehues, Assistant County Attorney, by letter dated September 22, 2003, provided this office with a response to the issues raised in the appeal. In his response, Mr. Twehues also advised, in relevant part:
The Sheriff's Office is not the custodian of offense/incident reports. Such reports are kept by the Campbell District Court Clerk or the Campbell Circuit Court Clerk. The open records request was forwarded to Thomas J. Calme, the Campbell District Court Clerk. It is my understanding that Mr. Calme responded to Mr. Henson's request by informing him that the District Court Clerk's records are not subject to the open records laws.
We are asked to determine whether the actions of the Department violated the Open Records Act. For the reasons that follow, we conclude that, with the exception of a procedural deficiency, the agency did not violate the Act.
KRS 61.880(1) requires that an agency respond to an open records request in writing within three business days after receipt of a request. Mr. Henson states in his letter of appeal that the Office of the Campbell County Sheriff failed to respond to his request, which was submitted on three separate dates. The failure of a public agency to provide a timely written response to a request within three business days after its receipt is a violation of KRS 61.880(1). Accordingly, we conclude that the agency's failure to timely respond to Mr. Henson's requests in writing within three business days after its receipt was a procedural violation of the Open Records Act. We urge the Department to review KRS 61.880(1) to insure that future responses conform to the Open Records Act. Procedural requirements are not mere formalities but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125.
Addressing the substantive issue, the Campbell County Sheriff advised Mr. Henson that the agency did not have the requested records and advised him that the records were kept by the circuit court clerk. Mr. Twehues confirmed this fact in his response to this office.
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. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Thus, the Sheriff's action in affirmatively advising Mr. Henson that it did not have the requested reports and why was consistent with the Open Records Act and prior decisions of this office and did not constitute a violation of the Act.
In addition, KRS 61.872(4) provides:
If 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.
The Sheriff's properly advised Mr. Henson that the Campbell Circuit Court Clerk would be the proper agency to address such a request for records. This was in accord with the requirements of KRS 61.872(4) . Under these facts, we conclude the substantive response of the agency did not violate the Open Records Act.
Moreover, this office has consistently recognized that records of the courts are not governed by the Open Records Act. In Ex Parte Farley, Ky., 570 S.W.2d 617, 624 (1978), the Kentucky Supreme Court held "that the custody and control of the records generated by the courts in the course of their work are inseparable from the judicial function itself, and are not subject to regulation." See also York v. Commonwealth, Ky.App., 815 S.W.2d 415 (1991); KRS 26A.200 and KRS 26A.220; and 94-ORD-105.
Accordingly, the terms and provisions of the Kentucky Open Records Act, KRS 61.870 through KRS 61.884, are not applicable to the records of the court system. Such records are subject to the control and direction of the Kentucky Supreme Court. Mr. Henson must seek redress for his grievance relative to access to the requested records through the courts.
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.
Chris Henson1939 Augustine AvenueCovington, KY 41014-1117
John DunnCampbell County Sheriff330 York StreetNewport, KY 41071
Paul H. Twehues, Jr.Assistant County Attorney331 York StreetNewport, KY 41071