Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Rowan County Sheriff's Department violated the Open Records Act in its disposition of Lori Foster Flannery's September 7, 2016, open records request for a 1972 police report. For the reasons that follow, we find no violation of the Act.
Ms. Flannery's September 7 request stated as follows: "I would like to have a copy of a report dating December of 1972. The party [ sic ] involved were Jeff B. Foster and Lori Foster. The address at the time was [address omitted]." The Sheriff's Department replied on September 9, 2016: "We do not have access to this report, by law we are only required to keep the reports for 7 years." Ms. Flannery's appeal to this office was received on November 9, 2016. She explains that this relates to an incident where she was shot with a 12-gauge shotgun at the age of five.
On November 16, 2016, Assistant Rowan County Attorney Ashley L. Adkins responded to the appeal, stating as follows:
After receiving the request, the Rowan County Sheriff's Office searched their records and determined that, based on the information provided, the record is not in their custody. Based on the limited information provided, we are not certain that this was a matter handled by the Rowan County Sheriff's Office. If more information is provided, we would be happy to search our records again for the incident referred to in the request.
Considering the nature of the incident, it is possible that the Kentucky State Police has information regarding the file. We recommend submitting a request to that agency. If the matter was heard before the Circuit Court, it is also possible that those records exist with the Court System.
In accordance with KRS 61.880, the Sheriff's Department responded in a timely manner on September 9, 2016 and informed Ms. Flannery that the record was not in their possession. The Rowan County Sheriff's Department cannot produce a record that is not in its custody.
After we requested clarification of this response, Ms. Adkins replied on January 11, 2017, that the Sheriff's Department had conclusively determined it was not the responding agency:
We contacted Mr. Jack Carter, who was Sheriff in 1972. He informed us that at that time, the Rowan County Sheriff's Office was not working cases involving shooting incidents [and] all cases involving a shooting were worked by the Kentucky State Police. We encourage Ms. Flannery to contact the Kentucky State Police to seek the records[.]
She added that the basis for Deputy Abner's initial statement, concerning a seven-year retention period, was "not certain."
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In view of the information provided, we find that the Sheriff's Department has satisfactorily explained the nonexistence of the records and committed no violation.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.