Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Whitley County Sheriff's Department violated KRS 61.880(1) in failing to respond in writing, and within three business days, to Times Tribune managing editor Samantha Swindler's March 24, 2010, request to inspect "the list maintained by the . . . Department of auxiliary deputies. " Despite repeated inquiries, Ms. Swindler received no response to her request prompting her to initiate this open records appeal.
Upon receipt of this office's notification of Ms. Swindler's appeal, Whitley County Sheriff Lawrence Hodge advised:
[W]e did not have time to go to the Whitley County Clerk's Office to get this information together for her. It is public knowledge and all she has to do is go to the Clerk's office and make a list. I do not have an active list that I can make a copy of for her or I would have just done that.
This belated response was legally deficient.
To begin, the Sheriff's written response violated KRS 61.880(1) insofar as it was not issued within three business days of receipt of Ms. Swindler's request. 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Because the Department does not maintain a list of auxiliary deputies, its belated response constituted a denial of Ms. Swindler's request. Under these circumstances, the Sheriff was obligated to so notify Ms. Swindler in writing and "furnish [her with] the name and location of the official custodian of the agency's public records" pursuant to KRS 61.872(4).
Although there is no indication that he advised Ms. Swindler, Sheriff Hodge advised this office that the Whitley County Clerk maintains the information she seeks. Our review of the pertinent statutes does not confirm this statement. KRS 70.045 authorizes the sheriff to appoint, and "have sworn in and entered on the county clerk order book, special deputies" but makes no reference to auxiliary deputies. Indeed, we can find no reference to auxiliary deputies in Chapter 70 of the Kentucky Revised Statutes or elsewhere. It is therefore unclear whether the Whitley County Clerk, in fact, maintains the information sought. Ms. Swindler may wish to redirect her request to the County Clerk, but her request may not yield the information sought.
"The procedural requirements of the Open Records Act," the Attorney General has long observed, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." See, e.g., 10-ORD-057 and authorities cited therein. Moreover, "[t]he language of the statute directing agency action is exact," Kentucky's courts have declared, "[i]t requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, 926 S.W.2d, 856, 858 (Ky. App. 1996). To date, Ms. Swindler has received no written response to her request. We urge the Whitley County Sheriff's Department to bear these observations in mind in responding to future open records requests.
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.
Samantha SwindlerSheriff Lawrence HodgePaul Winchester