Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the McCracken County Sheriff violated the Open Records Act in the disposition of Monty Turner's requests for records which Mr. Turner believes to be in the Sheriff's custody. For the reasons that follow, we find that the Sheriff's response was both procedurally and substantively deficient.
In a records application dated March 24, 2006, Mr. Turner requested access to "documents that confirm that the McCracken County Sheriff's Office provided WPSD-TV in Paducah, Ky., with photos and information used by WPSD on Nov. 4, 2003, 'Noon News' to air Monty K. Turner as a fugitive from justice." On April 6, 2006, Mr. Turner requested copies of "all records, documents, recorded interviews, and transcripts pertaining to the investigation of the drive by shooting of [sic] my address, 365 Mechan Ln. Lot #43, Paducah, Ky., and the residence of Kim Baker on Husband Rd. on or about October 29, or 30, 2003." Having received no response to either request, Mr. Turner initiated this appeal to the Attorney General.
By letter dated May 30, 2006, McCracken County Chief Deputy Terry Long responded to Mr. Turner's appeal, attaching copies of his agency's final disposition of each request. He attributed the delay in responding "to [his] absence from the office during the month of April and half of May." Continuing, he observed:
Mr. Turner is requesting documents that either do not exist or are available on the web. There was no case file relating to his allegations of a drive by shooting. This could not be substantiated and was deemed unfounded. He was entered as a fugitive from justice because while he was on trial on McCracken Circuit Court on other charges, he left during a break and did not return to the courtroom for the remainder of his trial.
In response to Mr. Turner's March 24 request for records confirming that the Sheriff's Office provided WPSD-TV with photographs and information identifying him as a fugitive, Chief Deputy Long advised:
There were no documents provided to WPSD other than a jail photo we obtained from the jail website. This photo is available on the web to anyone, including Mr. Turner. Delay in responding due to absence of custodian.
In response to Mr. Turner's April 4 request for records relating to the investigation of the drive by shooting at his residence, Chief Deputy Long advised:
There are no such records other than the original report made by Mr. Turner. He already has that. No investigation conducted. Report was unfounded due to no other witnesses and no reports made by Kim Baker to substantiate Mr. Turner's allegation.
While there appear to be very few records in the Office of the McCracken County Sheriff that are responsive to Mr. Turner's request, we find that the office is obligated to furnish him with copies of those records upon prepayment of reasonable copying fees, not to exceed ten cents per page, and postage charges. 1 In addition, we find that the failure of the Sheriff's Office to respond to Mr. Turner's request in a timely fashion was not excused by the records custodian's absence, and therefore constituted a violation KRS 61.880(1).
It is the opinion of this office that the Sheriff's Office improperly withheld both the photograph that it furnished to WPSD-TV, notwithstanding the availability of that record on the jail's website, and the original report of the alleged drive by shooting, notwithstanding the possibility that Mr. Turner may have a copy of the report in his possession. On the latter issue, this office has observed:
Recently, the Attorney General questioned whether furnishing a requester with a website address where records responsive to his or her request can be located, in lieu of affording the requester an opportunity to inspect the records or receive copies by mail upon receiving payment of a reasonable copying charge, satisfies the obligations of an agency under the Open Records Act. 05-ORD-050, p. 2. Citing KRS 61.872(3), the Attorney General reminded the agency that the Act contemplates access by one of two means[, on-site inspection or receipt of the records from the agency through the mail] ; 05-ORD-050 further validates our position. Based upon 95-ORD-52 and the summarized line of decisions, this office finds such a practice is not a substitute for complying with the mandatory terms of KRS 61.872(1)-(3).
05-ORD-277, p. 6. 2 Applying this decision to the facts of the instant appeal, we find that the Sheriff's Office improperly denied Mr. Turner's request for records that it furnished to WPSD-TV identifying him as a fugitive on the basis of the availability of the record on the internet.
Similarly, we find that the Sheriff's Office improperly denied Mr. Turner's request for records relating to his allegation of a drive by shooting at his residence on the basis that the only responsive record, the original report of the incident, is in his possession. To begin, it is by no means clear that Mr. Turner possesses a copy of the report or on what basis the Sheriff's Office made this assertion. Moreover, the Attorney General has rejected this argument in two prior open records decisions. Thus, at page 3 of 00-ORD-16, we observed:
The fact that [the requester] "already had copies of [the requested records] . . ." does not alter our conclusion. In at least one open records decision, the Attorney General has rejected this argument, holding that "[t]his rationale does not support nondisclosure, and is not a legally recognized basis for denying an open records request." 99-ORD-121, p. 10. [I]t is only through full disclosure of [the agency's] records [that the requester can] satisfy himself that the records are complete. 3
Unless Mr. Turner's open records request for the original report is duplicative in nature, the Sheriff's Office must make this report available to him. 95-ORD-47.
In closing, we find that the McCracken County Sheriff's Office violated KRS 61.880(1) in failing to issue a timely response to Mr. Turner's request due to the absence of the records custodian. On this issue, the Attorney General has opined:
The Open Records Act assumes the appointment of an official custodian, defined as "the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control," KRS 61.870(5), who is responsible for the timely processing of open records requests. KRS 61.872; KRS 61.880(1). The Attorney General has recognized that in the event the official custodian is absent, "an individual should be appointed as acting custodian to respond to open records requests in a timely fashion. " 94-ORD-86, p. 4; see also 96-ORD-185, p. 3 (holding that "the Law presumes the appointment of a records custodian . . . and in his absence, the appointment of an alternate to fulfill his duties"); 98-ORD-161, p. 3 (holding that "the three day statutory response time is not tolled by the absence of the agency's records custodian" ).
00-ORD-226, p. 2. Based on these authorities, we believe it is incumbent on the Sheriff's Office to designate an official custodian of records and an alternate to act in his absence, to discharge the duties imposed on all public agencies under 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.
Distributed to:
Monty Turner, #184946Little Sandy Correctional ComplexRt. #5, Box 1000Sandy Hook, KY 41171
Terry LongChief DeputyRecords Custodian Office of McCracken County Sheriff301 South 6th StreetMcCracken County CourthousePaducah, KY 42003
Frank AugustusMcCracken County Sheriff301 South 6th StreetPaducah, KY 42003
Daniel Y. BoazMcCracken County AttorneyCourthouse301 South 6th StreetPaducah, KY 42003
Footnotes
Footnotes
1 In each of these requests, Mr. Turner declares his indigency and requests a waiver of copying charges. The courts and this office have consistently held that public agencies are statutorily authorized to prescribe reasonable fees for making copies of public records, not to exceed ten cents per page, and that the Act does not provide for a waiver of this fee for indigent inmates. Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985); OAG 91-21; 95-ORD-90. Mr. Turner is not entitled to a fee waiver. KRS 61.874(3); 94-ORD-90; 99-ORD-30; 05-ORD-230.
2 At note 1 of that decision, this office reasoned that "while a requester may wish to avoid the efforts associated with conducting onsite inspection, or the expenses associated with payment for copies, he or she may not have access to a computer or the necessary skills to obtain the records electronically." 05-ORD-050, p. 2.
3 Pursuant to Records Series 4680 of the Local Government General Records Retention Schedule, complaints and offense reports, which are used to document complaints and to begin the investigative process, must be retained at the agency for at least three years. Accordingly, the original report must reside in the agency's custody.