Request By:
Thomas Fox
Kim Richards
John Casey McCall
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is a factual dispute between the requester and the public agency as to whether the requested records were provided. For the reasons stated below, this office cannot adjudicate the dispute as to whether the requested records have been provided.
Mr. Fox states in his appeal that he hand-delivered an open records request to Ariadjna King, Assistant City Clerk, on February 16, 2017. Mr. Fox requested the "ADP Master Control weekly payroll report" with "pay date December 30, 2016." He described the records as "the comprehensive City payroll report received weekly from ADP showing yearly and quarterly accumulations to date - for the year 2016." When Mr. Fox failed to receive a response from the City, he sent a letter dated February 27, 2017, to Kimberly Richards, Clerk-Treasurer, stating that he had not received the requested records and again described the record he was asking for. Having received no response, Mr. Fox appealed to this office by letter dated March 9, 2017. The City responded to the appeal on March 20, 2017, by faxing a copy of a letter from the City, dated February 20, 2017, to Mr. Fox, stating: "In response to your open records request of 02/16/2017, enclosed is [sic] the records you requested." The March 20, 2017, response of the City states: "The City did furnish the requested records (see enclosed) , by US Postal Service." On March 25, and 28, Mr. Fox sent emails to this office stating that he had not yet received the records from the City and would contact this office in the event that he did receive the records. This office unsuccessfully attempted to contact the City to clarify this discrepancy between the City's statement that the records had been sent, and Mr. Fox's statement that he had not received the records.
This scenario, where the requester states that he has not received the requested records, but the agency has provided evidence that it did send the requested records, has been addressed in past Open Records Decisions. With respect to factual disputes of this nature between a requester and a public agency, the Attorney General has frequently noted:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. . . . Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
OAG 89-81, p. 3; 03-ORD-061; 04-ORD-036; 05-ORD-042; 09-ORD-023; 12-ORD-204. As in the cited decisions, the record on appeal does not contain sufficient evidence concerning the actual delivery of the City's response for this office to conclusively resolve the related factual issue. This office has no reason to question the veracity of the requester or the City. In the absence of any irrefutable proof that the City did not mail the records, as reflected in its letter of February 20, 2017, this office is unable to determine that the City violated the Act. Accordingly, the parties should continue to consult and mutually cooperate to resolve any differences or misunderstandings related to the requested records.
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.