Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Summary : The Office of the Attorney General cannot resolve the factual dispute regarding whether the open records request was received by the Edmonson County Sheriff's Office, but finds that the Sheriff's Office cannot afford a requester access to records which do not exist.
Open Records Decision
The question presented in this appeal is whether the Edmonson County Sheriff's Office ("Sheriff's Office") violated the Open Records Act in the disposition of Eric Todd Lyver's ("Appellant's") requests for records. We cannot resolve the factual dispute regarding whether the open records request was delivered to, and received by, the Sheriff's Office. However, we find that the Sheriff's Office cannot afford Appellant access to records which do not exist.
On July 2, 2018, Appellant initiated this appeal by letter, claiming that the Sheriff's Office failed to respond to his June 6, 2018 open records request. In his request, Appellant sought the following documents:
1) All Records of the Edmonson County Sherriff Dept. and/or Sherriff's Deputies assisting in a joint, Traffic Safety Checkpoint, with the Kentucky State Police, at KY259 and Jock Rd. on Dec. 06, 2014
2) Deputy Wally Ritters work assignment sheet for Dec. 06, 2014.
3) Deputy Jordan Jones work assignment sheet for Dec. 06, 2014.
4) Any and All records/documents that may not specifically fall under the above three stated request, but still pertains to the Traffic Safety Checkpoint at KY259 and Jock Rd. on Dec. 06, 2014 and/or deals with any and all records of Deputies Wally Ritter and/or Jordan Jones involvement with the Safety Checkpoint.
In the appeal, Appellant states that he had previously requested records from "the wrong agency 1." Appellant states that, "I corrected my error, and now the Edmonson County Sherriffs [sic] Dept. fails to respond in any form."
On June 12, 2018, Edmonson County Attorney Gregory Vincent responded to the appeal on behalf of the Sheriff's Office. The County Attorney denies that the Sheriff's Office received the open records request. However, the County Attorney stated, "for sake of this response, I will assume that said request was sent as he asserts and will acknowledge that no response was ever sent out from Edmonson County." The County Attorney states that he discussed the documents request with the Sheriff of Edmonson County, and "[h]e assured me that his office has no records that would be responsive to the request that has been made." Regarding the previous appeal related to this request, the County Attorney states that "[i]t was once thought that some records may exist and have been in the hands of another attorney, but the belief was in error."
This office cannot resolve the factual dispute relating to receipt of the open records request, and therefore declines to find that the Sheriff's Office violated the Open Records Act when it failed to respond. A public agency is required to respond to an open records request in accordance with KRS 61.880(1) 2. However, the Sheriff's Office denies that it received the open records request and the record does not clearly establish that the request was delivered. 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). We are not equipped and do not have statutory authority to resolve a factual dispute when presented with conflicting narratives on appeal. See 14-ORD-132.
The record on appeal indicates that the Sheriff's Office did not respond to Appellant's open records request. However, in the absence of conclusive proof that the Sheriff's Office received the request, we cannot conclude that there was a violation of the Act. See 02-ORD-01 (agency cannot be faulted for failure to respond to request where no proof of delivery exists); 08-ORD-007 (agency assigned no error where it disputed receipt of open records request, and requester offered no proof that it was received).
Although the record does not clearly indicate that the Sheriff's Office received Appellant's request, the County Attorney asserts that the requested records do not exist. When the existence of records is denied, the public agency must offer some explanation for the nonexistence of the records. See
Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011)(declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence" ). A public agency is also required to "make a good faith effort to conduct a search using methods which can reasonably be expected to produce records requested[.]" 95-ORD-96, p.4 (citing
Cervey v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D.Colo. 1978)). Therefore, the Sheriff's Office is required to provide Appellant a written response that describes the search for the requested records and explains their nonexistence.
We find that the Sheriff's Office sufficiently explained the absence of the records and recounted the efforts to locate records for Appellant. The response to the appeal informed the Appellant that the Sheriff's Office does not possess responsive records. The County Attorney verified the absence of the records by discussion with the Sheriff. The response also shows that the County Attorney verified that records were not in the hands of other attorneys associated with the county. Based on the information in the record, we find that the Sheriff's Office complied with the requirements of the Act.
A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 On May 3, 2018, Appellant appealed an Edmonson County E-911 denial of a request for eleven hours of what he described as "dispatch log/records" from December 6, 2014, and "all records of the Edmonson County Sheriff's Office pertaining to traffic safety checkpoint operated jointly with the Kentucky State Police on that date[.]" In response to that appeal, the Edmonson County Attorney stated, "the Edmonson County Sheriff's Office has no records in their office about this incident as they have been turned over to counsel in the civil case." In 18-ORD-104, this office found that Edmonson County E-911 did not violate the Open Records Act where some records had been lawfully destroyed and the remainder were not possessed by the agency.
2 KRS 61.880(1) states: "If a person enforces KRS 61.870 to 61.884 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, 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. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action."