Request By:
Rae Anna T. Kirby
Joe Gaddie
Richard J. Deye
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The sole question presented in this appeal is whether the Butler County Sheriff's Department violated the Kentucky Open Records Act in failing to issue a timely written response to Rae Anna T. Kirby's September 24, 2009, written request for "any and all documentation to verify the appointment of John Ross Webster as either a general law enforcement special deputy or as an emergency circumstance special deputy with the Butler County Sheriff's Department" as well as "documentation of any and all department matters to which Mr. Webster has been assigned and provided assistance, including, but not limited to, 911 calls and road blocks." Because the record on appeal establishes that a response was issued on behalf of the Department on Monday, September 28, 2009, which is within three business days of when the agency received the request on Friday, September 25, 2009, no violation of KRS 61.880(1) occurred; the relevant facts are not in dispute. In failing to provide Ms. Kirby with "name and location of the official custodian" for the custodial agency of any responsive 911 recordings, the Department violated KRS 61.872(4).
By letter dated September 28, 2009, Butler County Attorney Richard J. Deye responded on behalf of the Department, initially advising Ms. Kirby that her written request was received by the Sheriff on September 25, 2009, and then referred to him for a response. According to Mr. Deye, the Department "is not in possession of any documentation to verify the appointment of John Ross Webster as either a general law enforcement special deputy or as an emergency circumstance special deputy with the Butler County Sheriff's Department." Additionally, the Department "has no documentation of any of the other matters" requested. 1 In closing, Mr. Deye noted that the Department "is not the custodian of [recordings of] 911 calls." To the extent Ms. Kirby was asking for such records, Mr. Deye suggested that she "may wish to make a request of another agency."
By letter dated October 2, 2009, Ms. Kirby initiated an appeal against "Butler County Sheriff Joe Gaddie for procedural violations of KRS 61.880(1)." Ms. Kirby acknowledged having received a written response from Mr. Deye dated September 28, 2009, on the date of her appeal, but questioned why it was postmarked October 2, 2009, as evidenced by the copy of the envelope attached to her appeal. 2 Upon receiving notification of Ms. Kirby's appeal from this office, Mr. Deye supplemented his initial response. 3 Mr. Deye does not contest the chronology of events presented in Ms. Kirby's appeal. According to Mr. Deye, the September 28, 2009, response was prepared by his Office and "approved by the Butler County Sheriff. A staff person for the Butler County Attorney (Natasha S. Gidcumb) provided assistance by typing the response and mailing the response." Enclosed with Mr. Deye's response is an affidavit "in which Ms. Gidcumb indicates that to the best of her knowledge and belief, she mailed the response letter on September 28, 2009. Neither the Butler County Sheriff nor the [O]ffice of the Butler County Attorney is wishing to cast aspersions on the United States Postal Service." Beyond that, Mr. Deye has "no explanation as to how it is that a letter mailed on September 28, 2009, was not postmarked until October 2, 2009." 4
As a public agency, the Department is obligated to comply with procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access generally speaking. More specifically, KRS 61.880(1) contains the procedural guidelines which a public agency must comply with in responding to requests. In relevant part, KRS 61.880(1) 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.
(Emphasis added). To clarify, "the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply." 01-ORD-140, p. 3. Although the burden on the agency to respond within three working days "is, not infrequently, an onerous one," 5 the only exception to this general rule is codified at KRS 61.872(5), which expressly authorizes postponement of access beyond three business days if the records are "in active use, in storage or not otherwise available."
In 96-ORD-207, the Attorney General observed the following in addressing the issue of whether a response was timely under the Act:
The computation of time statute, KRS 446.030(1)(a), which would be applicable to time requirements of the Open Records Act, reads as follows:
Id., p. 1.
Here, Ms. Kirby does not dispute that her September 24, 2009, request was received at the Department on Friday, September 25, 2009, the day of the act or event after which the designated period of time began to run. Both Sheriff Gaddie and Mr. Deye have confirmed as much. In other words, Friday, September 25, 2009, would not be included in the computation; likewise, the intermediate Saturday (September 26) and Sunday (September 27) must be excluded from the computation. Thus, Monday, September 28, 2009, the date on which the Office of the Butler County Attorney mailed its response on behalf of the Butler County Sheriff's Department, was day two, and thus within the permissible statutory time frame of three business days. Accordingly, this office has no basis upon which to find a violation of KRS 61.880(1). Ms. Kirby's sole complaint is the discrepancy between the date on which Ms. Gidcumb apparently mailed the response and the date of the postmark, October 2, 2009. Such an issue is not justiciable in the context of an Open Records Appeal; the Attorney General therefore makes no finding in this regard.
Although the Department complied with KRS 61.880(1) by issuing a timely written response advising that no responsive documents exist in the possession of the agency, the analysis does not end there. 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 shall furnish the name and location of the official custodian of the agency's public records. " Here, the Department affirmatively indicated that it does not possess any documentation matching the descriptions provided, and "remind[ed]" Ms. Kirby that it "is not the custodian of 911 calls [sic]." The Department further advised Ms. Kirby that she "may wish to consider making a request of another agency." However, KRS 61.872(4) requires more. In failing to provide Ms. Kirby with the "name and location of the official custodian of the agency's public records, " the Department failed to comply with KRS 61.872(4).
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.
Footnotes
Footnotes
1 A public agency cannot produce for inspection or copying nonexistent records or those which it does not possess nor is a public agency required to "prove a negative" in order to refute a claim that certain records exist under the rule announced in Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005). See 07-ORD-188 and 07-ORD-190 for the relevant analysis. Because Ms. Kirby did not challenge the merits of the agency's denial, nor has Ms. Kirby made a prima facie showing that such records exist, further discussion is unwarranted.
2 Although Ms. Kirby alleged that Sheriff Gaddie's most recent action "is evidence of a continuing pattern . . . to circumvent" the Open Records Act, relying upon 08-ORD-171 (Butler County Sheriff subverted intent of Act by imposing excessive copying fee) and 08-ORD-174 (Butler County Sheriff's Department failed to meet burden of proof in denying request on basis of KRS 61.878(1)(h)) in support of her position, this argument is unpersuasive. Suffice it to say that Mr. Deye sufficiently addressed the prior decisions in his response to Ms. Kirby's appeal by explaining that "a refund was made" upon the "ruling of excessive charges" and the second ruling was appealed to Butler Circuit Court (08-CI-168) which has "not yet ruled on the case." The record on appeal is devoid of any evidence to suggest that Sheriff Gaddie acted in bad faith.
3 Sheriff Gaddie responded via facsimile transmission on October 8, 2009, confirming the date of Mr. Deye's initial response and further advising that if "delays in the US Mail service occur, this is not the fault or Atty. Dick Deye nor [sic] myself." We agree.
4 Although the request was made to Sheriff Gaddie, Mr. Deye explained that he prepared the written response on behalf of the Sheriff at his request. "In fairness and honesty to all parties," Mr. Deye, to his credit, thus acknowledged that responsibility for any untimeliness "lies with the Office of the Butler County Attorney rather than the Butler County Sheriff." This office sees "nothing wrong with the [Department's] policy of processing open records requests through its Law Department [the County Attorney]. In our view, this policy ensures uniformity and adherence to the law. The policy may, however, be problematic if it occasions delays in agency response." 93-ORD-134, p. 13. No such delay occurred here.
5 02-ORD-165, p. 3.