Request By:
Mr. Stephen Knight
Mr. Derek Robbins
Ms. Lynne Pierce Dean
Opinion
Opinion By: Andy Beshear,Attorney General;Taylor Payne,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Boyle County Sheriff's Office (Sheriff's Office) violated the Open Records Act in its disposition of an open records request by Stephen Knight. We find the Sheriff's Office complied with the Open Records Act by providing a written explanation to Mr. Knight that it did not create, maintain or possess the requested records. We decline to address a factual dispute between the parties regarding whether the open records request was received by the Sheriff's Office on March 14, 2017.
Mr. Knight initiated this appeal by letter dated April 17, 2017, claiming that the Sheriff's Office failed to respond to his March 14, 2017, open records request. In that request, Mr. Knight sought to inspect "the record of any phone calls made from the Sheriff's Office to any division of the KSP and any record of calls made from any division of the KSP to the Boyle Co sheriff department from the period of July 14th 2016 to Sept 1, 2016."
In response to this appeal, the Sheriff's Department stated that it has no record of receiving this open records request and disputes that any such request was made. The Sheriff's Office also stated that it does not keep, collect or maintain any phone records, and therefore, does not have any records to provide. This response was provided to this office and Mr. Knight.
The Boyle County Attorney also provided a supplemental response on behalf of the Sheriff's Office, and confirmed that the Sheriff's Office did not receive the open records request until it was provided by this office in our letter notifying it of Mr. Knight's appeal. The Boyle County Attorney also stated that no such phone records are generated or maintained by the Sheriff's Office. That supplemental response was directed to the Office of the Attorney General, but was also sent to Mr. Knight. The supplemental response directed Mr. Knight to contact the Danville/Boyle County 911 Center as the public agency that may possess the records he seeks to inspect.
A public agency cannot produce that which it does not have and is not required to refute a claim that certain records exist absent a prima facie showing by the complainant.
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005); see also 11-ORD-037. Although the intent of the Open Records Act has been statutorily linked to the intent of KRS Chapter 171, pertaining to the management of public records, at KRS 61.8715, the Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. KRS 61.870(2). When a requested record is not possessed by the public agency, KRS 61.880(2)(c) requires that the agency offer a written explanation for the nonexistence of the records if appropriate. KRS 61.872(4) also requires a public agency that does not have custody or control of the public records, "to furnish the name and location of the official custodial of the agency's public records. "
Although the parties dispute the date of receipt of the open records request, the Sheriff's Office has responded to the open records request through the course of this appeal. In response to this appeal, the Sheriff's Office and the County Attorney provided a written explanation as to the nonexistence of the requested phone records to Mr. Knight to satisfy the burden imposed by KRS 61.880(2)(c). Furthermore, the agency provided Mr. Knight with the agency contact, address and telephone number of the agency that may possess the records of the phone calls which Mr. Knight seeks to inspect in efforts to comply with KRS 61.872(4). Based on these responses, the record indicates that upon receiving the open records request on appeal, the Sheriff's Office complied with the Open Records Act in its written responses to Mr. Knight.
Mr. Knight alleges that the Sheriff's Office violated the Open Records Act by not responding within three days of the open records request on March 14, 2017. See KRS 61.880(1) (requiring a public agency to respond within three days with its decision to permit or deny inspection of records). However, the Sheriff's Office denies that it received the open records request on March 14, 2017. Our office has consistently acknowledged the inability to resolve factual disputes through the course of an open records decision, specifically disputes concerning the actual delivery and receipt of a request. See 14-ORD-132 (citing OAG 89-81; 03-ORD-172; 04-ORD-223; 08-ORD-066; 12-ORD-122). KRS 61.880(2)(a) directs this Office to issue a written decision after reviewing the request and the denial by a public agency. We are not equipped nor do we have the statutory authority to resolve a factual dispute when presented with conflicting narratives on appeal. See 14-ORD-132. In this case, the record on appeal unequivocally indicates that the Sheriff's Office did not respond to Mr. Knight's March 14, 2017, open records request. However, the parties dispute, and the record is unclear, as to whether the Mr. Knight's March 14, 2017, open records request was delivered to and received by the Sheriff's Office. Therefore, we decline to render a decision as to whether the Sheriff's Office violated the Open Records Act when it did not respond within three days to the March 14, 2017, open records request, because such a decision would require resolution of a factual dispute, which we are unequipped to do.
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 proceedings.