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 Spencer County Sheriff's Department subverted the intent of the Open Records Act, short of denial of inspection, and within the meaning of KRS 61.880(4), by misdirection of the records applicant, Lawrence Trageser. Pursuant to the posted "Open Records Rules & Regulations" of the Spencer County Sheriff's Department, Sheriff Donald "Buddy" Stump is identified as the Department's "Official Custodian. " Nevertheless, the rules and regulations direct the applicant to hand-deliver, fax, or mail his or her request to the Spencer County Attorney's Office. Relying on 14-ORD-030, pages 4 and 5, Mr. Trageser asserts that the Open Records Act mandates submission of open records requests to the official custodian of records, Sheriff Stump, and not to the County Attorney. In defense of the posted rules and regulations, the County Attorney cites 12-ORD-167, recognizing that "the Spencer County Fiscal Court could designate the Spencer County Attorney as official custodian of records." We find that 12-ORD-167 is distinguishable and therefore not controlling. It is the decision of this office that 14-ORD-030 is the controlling authority.
In 12-ORD-167 this office considered the propriety of a Spencer County open records policy requiring all departments to prominently post written notice that "All open records requests must be submitted to the Spencer County Attorney's Office, 7 West Main Street, Taylorsville, KY 40071." No copy of the notice was presented to this office, but this language indicated that the County Attorney had been designated official custodian of records. We approved this designation based on the analysis found in 00-ORD-73 and 00-ORD-94.
Attached to Mr. Trageser's appeal is a copy of "Spencer County Sheriff's Department's Open Records Rules & Regulations, " identifying Sheriff Donald "Buddy" Stump as the department's official custodian but directing applicants to hand deliver, mail, or send via facsimile their open records requests "to the Spencer County Attorney's Office." The challenged rules and regulations in this appeal are distinguishable from the notice that we approved in 12-ORD-167. The primary difference between the 2012 notice, and the disputed rules and regulations here, is the designation of Sheriff Stump, and not the Spencer County Attorney, as the official custodian of records.
14-ORD-030 is dispositive of the issue on appeal. There, the posted rules and regulations identified Spencer County Clerk Lynn Hesselbrock, and not the Spencer County Attorney, as the official custodian of records but directed open records applicants to submit their requests to the Spencer County Attorney. At page 4 and 5 of that decision, we observed that the posted:
rules and regulations which Ms. Hesselbrock submitted to this office in support of her position. . .confirm her role as official custodian of records in her agency's custody. Although the county attorney may be consulted on records access issues affecting the county clerk, the county attorney is no longer official custodian of records for the records of the county clerk, and the county can no longer require open records requesters seeking access to the county clerk's records to submit their requests to the Spencer County Attorney.
Here, as in 14-ORD-030, the posted rules and regulations for the Spencer County Sheriff's Department identify Sheriff Stump as the department's official custodian of records, and here, as in 14-ORD-030, the department "can no longer require open records requesters seeking access to the [sheriff's] records to submit their requests to the Spencer County Attorney. " 1 The posted rule requiring Mr. Trageser, or any other records applicant, to hand deliver, mail, or fax a records request to the Spencer County Attorney's Office subverts the intent of the Open Records Act, short of denial of inspection, by misdirection of the applicant. KRS 61.880(4). 2
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:
Lawrence TrageserDonald "Buddy" StumpRuth A. Hollan
Footnotes
Footnotes
1 Contrary to the Spencer County Attorney's belief, the conclusion in 14-ORD-030 that she could no longer serve as official custodian of records for the Office of the County Clerk did not turn on the fact that the clerk was, under authority of KRS 64.019, authorized to impose a reproduction fee of fifty cents per page for copies of records produced in response to an open records request but on the fact that the county clerk's posted rules and regulations identified the clerk, and not the county attorney, as the official custodian of records for the Office of the Spencer County Clerk.
2 KRS 61.880(4) 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.