Request By:
Jewell Florea
Todd Wood
William M. Thompson
Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the response of the Pulaski County Sheriff's Department to Jewell Florea's March 25, 2008, request for a copy of the "contract for Private Security Services between the Pulaski Co. Sheriff's Dept. and Tokyotetsu of America Inc., plus a copy of the private security services between you and the Hendrickson Trucking Co." violated the Open Records Act. For the reasons that follow, we find that the Department's response to Ms. Florea's request, with the exception of a procedural deficiency, was proper due to the nonexistence of the records and did not violate the Act.
By letter dated March 27, 2008, Sheriff Todd Wood responded to Ms. Florea's request advising her that, since the contract dealt with the security and continued operation of each facility, he would need to research the legality for releasing all or parts of the contract. He further informed her that after he had fully researched, he would notify her of what part, if any, of the contract may be available for release.
Shortly thereafter, Ms. Florea initiated the instant appeal seeking a determination as to whether the Department's response violated the Open Records Act.
After receipt of notification of the appeal, William M. Thompson, Pulaski County Attorney, provided this office with a response to the issues raised in the appeal. In his response, Mr. Thompson advised that he had contacted Sheriff Wood and the sheriff indicated at the present time there is no written contract, only a verbal contract. Mr. Thompson further advised that the sheriff was in the process of preparing a written contract and as soon as one was available a copy would be forwarded to Ms. Florea. He then confirmed there were no written contracts with the two companies at this time.
For the foregoing reasons, we find that, with the exception of a procedural deficiency, the actions of the Department did not violate the Open Records Act. In its supplemental response, the agency affirmatively advised that, at the present time, no written contract (s) exist between the Department and the two companies. In addition, it explained that at the present time there only existed a verbal contract, the sheriff was in the process of preparing a written contract, and, when prepared, Ms. Florea would be provided with a copy. Obviously, a public agency cannot afford a requester access to records that it does not have or that do not exist. 99-ORD-98. The Department discharged its duty under the Act by affirmatively so advising and providing a credible explanation for the nonexistence of such records. 07-ORD-243. Thus, we find the Department's actions did not violate the Open Records Act, in this regard.
KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
In construing this provision, the Attorney General has observed:
Unless the requested record is "in active use, in storage or not otherwise available," the agency has only three business days to reach a determination on disclosure of public records and to notify the requester of its final decision. If a period of time greater than three business days is required, the agency must give "a detailed explanation of the cause . . . for further delay" and state "the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.872(5). Failure to comply with these provisions constitutes a violation of the Open Records Act.
99-ORD-13, p. 5, 6.
In the initial response, the sheriff advised Ms. Florea that he would need to research the legality for releasing all or parts of the contract; and after the research, he would notify her of what part, if any, of the contract may be available for release. Such an explanation cannot properly be characterized as "detailed." Accord, 04-ORD-044 (holding that delay until the agency "could do some research on the matter," was insufficient to be characterized as a "detailed explanation" of the cause for the delay). KRS 61.872(5). Because the Department's response failed to provide Ms. Florea with a detailed response as to the "time, place and earliest date on which" the requested records would be available for inspection after the research was completed, it constituted a procedural violation of the 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.