Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Calloway County Sheriff violated the Kentucky Open Records Act in failing to respond upon receipt of Gregory Valentine's request for "[a]ll reports made by the Louisville [] Police Department to the Calloway County Sheriff's Department during the calendar years 2002 and 2003 concerning Gregory Valentine DOB 1/30/59, SSN [], 1602 Hunting[t]on Place, Apartment # 3, East Chase Apartments, Louisville, Kentucky [4]0220 (or any other address)." Although the Sheriff violated KRS 61.880(1) in failing to issue a written response within three business days of receiving the request, a public agency cannot produce for inspection or copying records which do not exist nor does the record contain any evidence of bad faith or willful concealment; however, the Sheriff erred by failing to provide any explanation for the nonexistence of the records in belatedly denying access on that basis.
By letter dated June 12, 2007, Mr. Valentine initiated this appeal from the "refusal of the Calloway County Sheriff's Office to respond" upon receipt of his written request dated May 14, 2007. Upon receiving notification of Mr. Valentine's appeal from this office, Calloway County Sheriff William E. Marcum responded, advising that he was "forwarding a copy of the letter mailed to Mr. Valentine regarding an 'Open Records Request' received by this office." A response to Mr. Valentine has been mailed to the address, Little Sandy Correctional Complex, provided by him." Attached to Sheriff Marcum's response is a letter of the same date in which Samantha V. Mighell, Investigator, notified Mr. Valentine that his request "was received and reviewed. The Calloway County Sheriff['s] Department has no records or information involving you during the period identified by your request." Without further elaboration, this response does not satisfy the burden of proof imposed upon public agencies by KRS 61.880(2)(c), as evidenced by prior decisions of this office.
In our view, the analysis contained at pp. 3-5 of 07-ORD-023, a copy of which is attached hereto and incorporated by reference, is controlling relative to KRS 61.880(1); likewise, pp. 6-9 of that decision are controlling with regard to statutory obligations of a public agency upon receipt of a request for nonexistent records and those which it does not possess. See 07-ORD-035. On appeal, the Sheriff does not offer any explanation for the failure to respond upon receipt of Mr. Valentine's request and the initial response issued on his behalf is also silent on this issue. As consistently recognized by the Attorney General, failing to respond in a proper and timely fashion constitutes a violation of KRS 61.880(1). 07-ORD-106; 06-ORD-123; 05-ORD-110; 04-ORD-183; 98-ORD-188; 95-ORD-114. That being said, a public agency cannot produce for inspection or copying that which it does not have nor does the record contain any reason to question the Sheriff's veracity; however, a public agency is required to offer some explanation for the nonexistence of the records at a minimum. 07-ORD-023, pp. 6-8. Insofar as the record is devoid of any such explanation, the Sheriff failed to satisfy his burden of proof in accordance with KRS 61.880(2)(c). Id; 07-ORD-035.
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.
Gregory Valentine, # 163775
William E. MarcumCalloway County Sheriff304 Maple StreetMurray, KY 42071
David L. HarringtonCalloway County AttorneyP.O. Box 921Murray, KY 42071-0921