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 City of West Buechel (the "City") 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.
Ms. Clara Crawford states in her appeal that she faxed an open records request to Kimberly Richards, City Clerk-Treasurer, at the City's fax number1, on April 17, 2017, and that she received a confirmation that her fax had been successfully transmitted. Ms. Crawford requested to receive a copy of the "ADP Master Control year end weekly payroll report for the pay date December 30, 2016." When Ms. Crawford failed to receive a response from the City, she sent another letter, by fax, dated April 26, 2017, again to Ms. Richards. Attached to the letter was a copy of the April 17, 2017, open records request. Ms. Crawford's letter stated, in part, "Please provide me a copy of the requested 2016 year end payroll records immediately. Your unwarranted and unexplained delay is seriously interfering with me fulfilling my statutory responsibilities as a member of the West Buechel City Council in respect to on-going budget discussions and general City oversight." Having received "no response" to her two requests, Ms. Crawford appealed to this office by letter dated June 1, 2017.
The City responded to the appeal on June 12, 2017, by faxing copies to this office of letters from the City, dated April 18, 2017, and April 28, 2017, addressed to Ms. Crawford.2 The April 18 letter stated: "In response to your open records request which is not dated, the documents you requested are enclosed. "3 The April 28 letter stated: "In response to your second request for the same document on April 26, 2017, I am once again enclosing the requesting [sic] document." In her response to this appeal, Ms. Richards stated: "The City did furnish the requested records on two occasions (see enclosed) by US Postal Service."
This scenario, where the requester states that he or she 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; 17-ORD-063 (involving a nearly identical appeal against the City of West Buechel), (other citations omitted). 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 record, as reflected in its letters of April 18, 2017, and April 28, 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.
Footnotes
Footnotes
1 The fax number on Ms. Crawford's faxed open records request is the same number as shown on the City's letterhead.
2 The letters were addressed to Ms. Crawford's address as reflected in her open records appeal.
3 The first request from Ms. Crawford is dated, in bold, April 17, 2017.