Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether the Boone County Clerk violated the Open Records Act in failing to timely respond to requests for records and in failing to produce records that it did not possess. We find that the Boone County Clerk procedurally violated the Open Records Act in failing to timely respond to requests for records, but did not substantively violate the Open Records Act in failing to produce records that it did not possess.
Kenneth Eaton ("Eaton") submitted an open records request to the Boone County Clerk on Apr. 28, 2014. Eaton requested "any and all District Court case history District Court case numbers from Boone Co. District Court," and "any and all Circuit Court case history Circuit Court case numbers from Boone Co. Circuit Court." On May 14, 2014, Eaton submitted another open records request to the Boone County Clerk. Eaton requested: "(1) ANY and all District Court case history and numbers from Boone County. On Kenneth Wayne Eaton . . . . (2) Any and all Circuit Court case history and numbers from Boone County. On Kenneth Wayne Eaton . . . ." Having received no response to either request, Eaton initiated this appeal on May 22, 2014. Eaton appealed "the decision of the Boone County District and Circuit Court Clerk the Honorable Kenneth Brown." Eaton argued that the Boone County Clerk "has passed the time of ( 28 ) working days to reply," and "the Kentucky Supreme Court own declaration that whatever belongs to courts belongs to the public Farley at 625 cited in 04-ORD-037, page. 5."
The Boone County Clerk responded on June 3, 2014 that "the Boone County Clerk is not the records custodian of any records of the Boone District Court or Boone Circuit Court. . . . Further, the Boone County Clerk properly informed Mr. Eaton who the appropriate records custodian is, and their address." The Boone County Clerk attached a correspondence to Eaton dated May 23, 2014, informing him that the Boone County Clerk "is not the custodian of District or Circuit Court records," and directing him to the Circuit Court Clerk.
KRS 61.880(1) provides that "each public agency, upon any request for records . . . shall determine within three (3) days . . . 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." The Boone County Clerk does not dispute that it did not respond to either of Eaton's requests within three business days. Accordingly, the Boone County Clerk committed two procedural violations of the Open Records Act in failing to timely respond to requests for records.
Eaton appeals "the decision of the Boone County District and Circuit Court Clerk the Honorable Kenneth Brown." Kenneth Brown is the Boone County Clerk, and not the Boone County Circuit Court Clerk. The Boone County Circuit Court Clerk is Diane Murray. The Boone County Clerk properly asserted that it is not the official custodian of the Boone County Circuit Court Clerk's records, and fulfilled its obligation under KRS 61.872(4) to notify Eaton of the official custodian of the records. "A public agency cannot afford a requester access to nonexistent records or those which it does not possess." 11-ORD-122. Accordingly, the Boone County Clerk did not substantively violate the Open Records Act in failing to produce records that it did not possess.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or any subsequent proceedings.
Distributed to:
Kenneth Eaton # 239200Kenneth BrownRobert D. Neace