Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Hopkins County Sheriff's Department relative to the November 6, 2006, request of John Yarbrough for "records that would show the activities of all Hopkins County Sheriff Deputies (such as what are called time cards) for Oct., Nov., and Dec. 2000," including "any records that pertain to the Walmart theft investigated by Dep. E. Yeager that involved Dep. Shawn Bean's brother Scott Bean . . .," violated the Kentucky Open Records Act.
By letter dated November 9, 2006, Frank Latham, Hopkins County Sheriff, advised Mr. Yarbrough:
Enclosed please find copies of documents we have in our possession from 2002. Since a criminal summons was issued by the County Attorney, no case file was drawn during the former Sheriff's administration.
Subsequently, Mr. Yarbrough initiated an appeal with this office. In his letter of appeal, he indicated that the Sheriff's response included only court records that he had previously received and did not mention the request for records such as time cards for the deputies.
After receipt of notification of the appeal, Sheriff Latham provided this office with a supplemental response to the issues raised in the appeal. In his response, he advised, in relevant part:
This request for time cards is not a clear request. I am not sure what Mr. Yarbrough is requesting, such as documents. This would cover several grounds such as time cards for compensation and/or time cards for service. My office does not maintain such a document as a time card. The time cards for request of service are handled by the Madisonville Dispatch Center. If he is requesting a time card for hours worked, that would be handled through the Hopkins County Treasurer's Office. I might also add that this issue has been addressed in an earlier response to Open Records Request dated October 15, 2004, to Mr. John Yarbrough by me on a previous request. I am including this response dated October 15, 2004. If you look at point three, you will see that this had been addressed at that time.
?
As far as records, there have been no uniform records keeping system in place at the Hopkins County Sheriff's office prior to this administration. They have been completely ignored. My clerk secretaries, along with myself, have spent approximately 60 to 90 hours involved in Mr. Yarbrough's different requests. A lot of these requests have not been narrow in scope; they have been broad. We have not sent them back for clarification. We have tried to cover the whole gamete of what we thought he meant and include the direction of the document or documents . . . .
We are asked to determine whether the actions of the Hopkins County Sheriff's Department relative to the requests of Mr. Yarbrough violated the Open Records Act. For the foregoing reasons, we find that the Department did not violate the Act.
Along with its October 26, 2006, supplemental response, the Department provided Mr. Yarbrough with copies of records responsive to this request for records relating "to the Walmart theft investigation." 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." Accordingly, since Mr. Yarbrough has been provided records responsive to this portion of his request, the issue as to access to these records is moot and no decision will be rendered in this regard.
In its supplemental response, the Department advised that it did not have the time cards responsive to Mr. Yarbrough's request. As the Attorney General has consistently recognized, a public agency cannot afford a requester access to records that it does not have or which do not exist. 04-ORD-036. An agency discharges its duty under the Open Records Act by affirmatively so indicating. Because the Department cannot produce that which it does not have and affirmatively indicated as much to Mr. Yarbrough, its response did not violate the Open Records Act in this regard. 1 99-ORD-108, p. 3.
Pursuant to KRS 61.872(4): "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 furnish the name and location of the official custodian of the agency's public records." In this case, the Department, in its supplemental response, affirmatively advised Mr. Yarbrough that it did not possess time card records which are responsive to his request and explained that any responsive records would be in the custody of the Madisonville Dispatch Center (time cards for request of service) and the Hopkins County Treasurer's Office (time cards for hours worked) , respectively. Accordingly, it is the decision of this office that the Department substantially complied with the Open Records Act in responding to this portion of Mr. Yarbrough's request.
Finally, the Department's responses indicate that it has provided Mr. Yarbrough with certain records responsive to his request. In his letter of appeal, Mr. Yarbrough contends that it is unclear whether the Department has provided all documents in it possession responsive to his request. Regarding disagreements of this nature between a requester and a public agency, this office, in OAG 89-81, stated:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
Accordingly, the parties should mutually cooperate to resolve any differences or misunderstandings related to records sought. If there remain any records in dispute, the requester should contact the Department and clarify the precise records he is seeking or specifically identify those records that he believes he requested but did not receive.
A party aggrieved by this decision may appeal it by initiating an 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 In its supplemental response, the Department explained that prior to the present administration, there had been no uniform record keeping system in place at the Hopkins County Sheriff's office. This may explain, in part, the nonexistence of records requested by Mr. Yarbrough for the year 2000. However, certain records from the year may have been properly destroyed under applicable Records and Retention schedules established by the State Archives and Records Commission. See, for example applicable Disposition Instructions of the Local Government General Records Retention Schedule. Pursuant to the Disposition Instructions of the Local Government General Records Retention Schedule, K1, the following records must be destroyed "after audit":Series No.Record TitleRetain at Agency (Years)L5022Time and Attendance Record File3L4658Office's Daily Activity Report1L5024Wage and Tax Statements/W-25
To ensure that a proper records management system is now in place, we have referred this matter to the Department for Libraries and Archives for further inquiry as that agency deems appropriate.