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 Bourbon County Sheriff violated KRS 61.880(1) by failing to respond to Heidi K. Erickson's December 2, 2011, request for "the alleged 'legal paperwork allowing [the sheriff's] employees unwarranted entry'" to remove her "belongings from [her] home at 297 Young's Mill Road, Paris, KY 40361." We find no substantive error in the sheriff's belated denial of her request based on his nonpossession of responsive records. If, however, the sheriff assessed a $ 5.00 charge for reproducing records Ms. Erickson requested under the Open Records Act, as she alleged, and no specific statutory authority existed for the imposition of this charge, his actions constituted a subversion of the intent of the open Records Act, short of denial of inspection, based on the imposition of excessive fees. KRS 61.880(4).
In her letter of appeal, Ms. Erickson challenged the sheriff's failure to respond to her request, 1 as well as the imposition of a "$ 5.00 per report" copying charge. She clarified that the "legal paperwork" she requested consisted of records that the sheriff's office "claimed it had pursuant to a statement made by its deputy to [Ms. Erickson] and Susan Hayes, a proprietor for Harpe's Storage of Paris, KY on or about 12/2/11 . . . ." 2 In correspondence directed to this office after Ms. Erickson filed her appeal, Bourbon County Sheriff Mark L. Matthews explained that the "legal paperwork" to which she requested access "was a Writ of Possession signed by Bourbon District Court," and that those records are maintained in the office of the Bourbon Circuit Clerk. Sheriff Matthews emphasized that his office has no copies. He offered no explanation for his failure to respond to her request and refused to "discuss here" Ms. Erickson's challenge to the "fees that the Bourbon County Sheriff's Office charges . . . ."
The Bourbon County Sheriff violated KRS 61.880(1) by failing to respond to Ms. Erickson's request in writing and within three business days. KRS 61.880(1) provides, in part:
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.
Kentucky's courts have recognized that "[t]he language of the statute requiring agency action is exact . . . [and] 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). In his belated response to Ms. Erickson's appeal, the sheriff did not deny receipt of her request, and, as noted, she presented proof of delivery. "Public agency inaction," this office has often noted, "is not a viable option under the Open Records Act. " 09-ORD-058, p. 5. We urge the sheriff to review KRS 61.880(1) to insure future compliance with the procedural requirements of the Act.
The sheriff could not, of course, produce for Ms. Erickson's inspection a record that he no longer possessed. 3 The writ to which she requested access was issued by the Bourbon District Court on March 1, 2011, 4 received by the Bourbon County Sheriff on October 4, 2011, executed by his office on October 5, 2011, 5 and returned to the district court on October 6, 2011. 6 Although the "legal paperwork, " meaning the writ, was in his possession until it was served and returned to the issuing court, he was under no legal obligation to maintain a copy. Our review of the pertinent statutes, and the retention schedule governing records of the sheriff's office, 7 discloses no requirement that the sheriff do so. There being no legal requirements that the sheriff retain a copy of the writ of possession, and Sheriff Matthews having advised this office that he did not, we find no substantive error in his denial of Ms. Erickson's request. Sheriff Matthews fully discharged his duty under the Open Records Act, albeit belatedly, by declaring that his office no longer possessed a copy of the requested writ and advising Ms. Erickson where she could obtain a copy per KRS 61.872(4). 8 Accord, 01-ORD-38 (copy enclosed) .
Nevertheless, Ms. Erickson raised the issue of excessive copying fees in her December 2 request and her January 11 appeal, and we believe Sheriff Matthews was obligated to respond to this allegation per KRS 61.880(4). That statute provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
Ms. Erickson asserts, and Sheriff Matthews does not refute, that his office imposed a fee of "$ 5.00 per report instead of the $ 1.00 per report" for four reports consisting of less than 5 pages each. On appeal, she notes that the reports for which she was charged $ 5.00 were not accident reports. 9 This is a proper issue for review under the Open Records Act and one which must be resolved against the sheriff in the absence of any proof that the charge was statutorily authorized or that it otherwise reflected his actual costs, not including staff costs, per KRS 61.874(3). 10 The Bourbon County Sheriff subverted the intent of the Open Records Act, short of denial of inspection, by imposing excessive fees. Accord, 02-ORD-218 (enclosed) .
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.
Distributed to:
Heidi K. EricksonMark MatthewsG. Davis Wilson
Footnotes
Footnotes
1 Ms. Erickson provided proof of delivery of her request in the form of a signed USPS return receipt.
2 In her December 2 request, Ms. Erickson indicated that she "would like to have information as to who and why the officer [who made this statement] represented this claim." Sheriff Matthews responded that "[t]here is no recorded documentation or record of a verbal conversation." Although Sheriff Matthews treated this inquiry as a properly framed records request, it was in fact, an improperly framed request for information. The sheriff had no obligation under the Open Records Act to answer Ms. Erickson's questions about who made the statement or why the statement was made. See, e.g., 06-ORD-024 (enclosed) and authorities cited therein.
3 This office obtained a copy of the writ from the Bourbon Circuit Court.
4 KRS 425.076. Nothing in the record on appeal explains the lapse in time between issuance by the court and receipt in the sheriff's office.
5 KRS 425.091 and 423.096.
6 KRS 425.106.
7 County Sheriff Records Retention Schedule (http://kdla.ky.gov/records/retentionschedules/Documents/Local%20Records…).
8 KRS 61.872(4) provides, "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. "
9 502 KAR 15:010 Section 5.
10 KRS 61.874(3) provides:
The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required. If a public agency is asked to produce a record in a nonstandardized format, or to tailor the format to meet the request of an individual or a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.