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 Office of Fleming County Sheriff relative to the open records request of Wade McNabb for records pertaining to Ashley Darnell, Dustin Hamilton, Melissa Gilbert, aka Melissa L. Gilbert, violated the Open Records Act. For the reasons that follow, we conclude that, with the exception of a possible procedural violation, the substantive response of the agency did not violate the Act.
By letter dated February 14, 2007, Mr. McNabb submitted a request to the Fleming County Sheriff's Office for copies of records relating to Ashley Darnell, Dustin Hamilton, Melissa Gilbert, aka Melissa L. Gilbert, such as records of arrest, criminal reports, incidence reports, citations, reports to other law enforcement agencies, 911 dispatch logs, and open records requests.
In his letter of appeal, dated March 19, 2007, Mr. McNabb indicated that he had not received a response to his February 14, 2007, request.
After receipt of notification of the appeal, Scotty Royse, Fleming County Sheriff, provided this office with a copy of his response to Mr. McNabb's request, which he provided him after receipt of our notification. In his response, he advised:
In response to the open records log # 200700188. There are no records of arrests, criminal reports, incidence reports or citations, at the Fleming County Sheriff's Office. I do not know any of these individuals. I am the new sheriff, just taking office on January 1, 2007. I do not have custody or control of the 911 Dispatch Office, they are located at the 911 Center. Any other criminal records can be found at the Fleming County Circuit Court Clerk's Office.
I have not found any records pertaining to Ashley Darnell, Dustin Hamilton, Melissa Gilbert in the sheriff's office. As for the delay in the response, again I took office on January 1, 2007. The request was made to the Jerry Wagner, who is no longer the Sheriff, during the transition this mail was not brought to my attention to be completed.
My office apologizes for any inconvenience to this matter.
We are asked to determine whether the actions of the sheriff's office to Mr. McNabb's open records request violated the Open Records Act. We conclude that, with the exception of a procedural deficiency, the substantive response of the agency did not violate the Act.
The sheriff's office admitted in its response to the request that the agency had failed to timely respond to Mr. McNabb's request, due in part to the transition period of the new sheriff taking office and that the request was addressed to the former sheriff. This was a procedural violation of the Open Records Act. KRS 61.880(1) establishes the procedural guidelines for agency response to an open records request. 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.
These requirements, the Attorney General has often noted, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. Discharge of these duties is required by law, and is as much a legal obligation of a public agency as the provision of other services to the public.
Addressing the substantive issues, the sheriff's office's response to Mr. McNabb in which the agency affirmatively advised him that records responsive to his request did not exist at the agency was proper and did not constitute a violation of the Open Records Act. Obviously, a public agency cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Thus, there was no violation in this regard.
Moreover, 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 office notified Mr. McNabb that 911 dispatch records would be at the Dispatch Office and other criminal records could be found at the Fleming County Circuit Court Clerk's Office. This was in substantial compliance with the requirements of KRS 61.872(4) and 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.
Wayne McNabb, # 186567
Scotty RoyseFleming County Sheriff115 W. Main StreetFlemingsburg, KY 41041
John PriceFleming County Attorney201 Court SquareFlemingsburg, KY 41041