Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Boone County Sheriff violated the Open Records Act in the disposition of Stephen Mann's August 1, 2008, request for inspection of documents relating to an arrest. For the reasons that follow, we find that the Sheriff's response was both substantively and procedurally in violation of the Act.
In his August 1 request, Mr. Mann gave a criminal case number and stated the following:
Please furnish me with the following records associated with this criminal case/ incident/arrest,
1) All field notes, memorandums, emails, interoffice memos, word excel spreadsheets or word documents and any other records that constitute a communication from BCSD Studer regarding this incident/arrest/ criminal case.
2) All detailed records for Deputy Studar's [sic] government issued cell phones, detailing all inbound and outbound calls on his cell phone for 05/29/08.
3) A record of all chain of command supervisors up to and including but not limited to, Sheriff Helmig for Deputy Studer regarding this incident/arrest/ criminal case.
4) All emails, memorandums, interoffice memos, word excel spreadsheets or word documents that constitutes [sic] a communication between Sheriff Helmig and all BCSD and county administration officials, regarding this incident/arrest/ criminal case
5) Any and all records in the possession of the BCSD, that have not been specifically requested in numbers 1-4, that pertain to this specific incident/arrest/ criminal case, records that I may not have the working knowledge about, that your department possesses and maintains.
On August 5, 2008, the Boone County Sheriff's office issued the following letter signed by its spokesman Tom Scheben:
I am in receipt of your open records request dated and received in our office at close of business on August 1, 2008. Pursuant to KRS 61.870 -- KRS 61.884 I am responding to your letter within three (3) business days.
I am in the process of collecting the records and will have them available for inspection of Friday, August 8, 2008.
On August 8, 2008, Mr. Scheben followed up with a letter stating, in pertinent part, as follows:
As I indicated in the initial three day response to you dated August 5, 2008 I would need until August 8, 2008 to research the request. In an effort to preserve space and time my answers will refer directly [to] your numbered requests.
1. Comply -- I have copied the entire case file.
2. Denied -- nonexistent record. Deputy Studer does not possess an issued cell phone.
3. Comply -- Deputy Studer's chain of command for Thursday May 29, 2008 was Sergeants Jim Hill & Roger Paul, Lieutenant Charles Rolfsen, Lieutenant Colonel Robert Reuthe, and Sheriff Michael Helmig.
4. Denied -- nonexistent record. Sheriff Helmig sent no emails, memorandums, interoffice memos, word excel spreadsheets or word documents to anyone concerning this incident.
5. Denied -- nonexistent record. You have the entire case file as indicated in #1.
Kindly remit $ 4.62 (15 pages @ .20* = $ 3.00 and postage & envelope $ 1.64) to my attention and I'll mail the above referenced material.
[Footnote:] *The additional expense for copies is attributable to color & that certain records had to be copied twice to ensure the redacted fields were rendered unreadable.
Mr. Mann initiated an open records appeal on January 12, 2009, without further comment. Responses to the appeal have been received from both Sheriff Michael A. Helmig and County Attorney Robert D. Neace. The responses reiterate that all relevant documents have already been provided to Mr. Mann.
To this extent, we find no violation of the Open Records Act. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states do not exist.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by explaining why no record was generated, we do not believe that this appeal warrants additional inquiries. We have no basis for doubting the Sheriff's assertion that Deputy Studer does not possess a government-issued cell phone or that Sheriff Helmig engaged in no written communications regarding a particular arrest, nor have we any reason to believe that either of these circumstances would be unusual.
We believe, however, that a procedural violation of the Open Records Act occurred in this case. KRS 61.872(5) requires that if records are not produced for inspection within three days from receipt of the application, a public agency must give "a detailed explanation of the cause ? for further delay" as well as where and when the record will be available. Mr. Scheben's letter of August 5, 2008, did not provide a detailed explanation, or indeed any explanation, for the further delay. Moreover, even if that letter had included the additional statement from the August 8 letter that time was needed "to research the request," the Sheriff's response would not have complied with KRS 61.872(5). The Attorney General has previously ruled that such a statement does not constitute a sufficiently "detailed explanation." See, e.g., 08-ORD-216 (an appeal involving the Office of the Boone County Sheriff); 08-ORD-099; 04-ORD-044.
Furthermore, a substantive violation of the Open Records Act was committed in that the Sheriff's office charged an excessive rate of 20 cents per page for copies. It has long been the position of the Attorney General that a "reasonable fee" for copies of public records under KRS 61.874(3) is ten cents per page unless the public agency can substantiate that its actual costs exceed that amount. See, e.g., 08-ORD-171; 08-ORD-006; 03-ORD-224; 01-ORD-136 (citing
Friend v. Rees, 696 S.W.2d 325 (Ky.App. 1985)).
The Sheriff's office cited two reasons for deviating from the ten-cents-per-page rule: "color, " and "that certain records had to be copied twice to ensure the redacted fields were rendered unreadable. " The latter of these reasons we previously rejected in 08-ORD-216 on the basis of the Boone County Sheriff's office's duty to bear the costs of redaction pursuant to KRS 61.878(4). Insofar as this explanation is again relied upon here, we find a violation of the Act. As to the issue of color copies, due to the absence of any substantiation of the actual cost of reproducing the records, we must reject that explanation as well. We therefore find that the Sheriff's office therefore charged excessive copying fees in violation of KRS 61.874(3).
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 proceedings.