Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Police ("KSP") violated the Open Records Act in failing to issue a timely written response to a request for records submitted by Uriah Pasha ("Appellant"). Due to a factual dispute concerning the actual delivery and receipt of Appellant's request for records, this office has no basis upon which to find that KSP violated the Act. However, KSP discharged its duty under the Act by conducting a reasonable search for responsive records and providing Appellant copies of all existing responsive records in its possession.
On October 15, 2019, Appellant mailed a request for records to the Frankfort KSP post seeking, "[a] copy of the correspondence used by [KSP], Office of the Major to communicate that the Agency received a letter from [Appellant]. The Office of the Major ask [sic] the Office of Internal Affairs at the Kentucky State Penitentiary to discipline [Appellant] for Making Threatening Statements in his July 2019 Correspondence to the [KSP] Office of the Major." On November 4, 2019, Appellant submitted an appeal to this office, arguing that KSP failed to respond to his request.
On November 13, 2019, Staff Attorney Cody Weber responded on behalf of KSP stating that the agency did not receive Appellant's October 15 open records request until this office provided a copy on appeal. KSP stated that its Open Records Custodian searched for a copy of Appellant's request but could not locate the letter. KSP argued that Appellant misdirected his request, because he mailed it to the "Office of the Major" and no such office exists. However, KSP stated that the Records Custodian searched for records responsive to Appellant's request and located a responsive July 16, 2019 letter. KSP provided evidence that it mailed a copy of the responsive letter to Appellant and indicated that the agency had no additional responsive records.
This office cannot conclude that the KSP violated the Act by failing to issue a timely written response to Appellant's request for records. Pursuant to KRS 61.880(1), a public agency has three business days, excluding weekends and legal holidays, to respond to an open records request. This office has consistently acknowledged the inability to conclusively resolve a factual dispute concerning the actual delivery and receipt of an open records request. See OAG 89-81; 03-ORD-172; 14-ORD-199; 18-ORD-056. More specifically, "this office is not equipped to resolve factual dispute[s] [when presented with conflicting factual narratives]." 96-ORD-70, p. 3; 14-ORD-132. As in the those decisions, the conflicting record on appeal here does not contain sufficient evidence concerning the actual delivery and receipt of Appellant's October 15, 2019 request. Further, the record supports KSP's argument that Appellant misdirected his request to a nonexistent "Office of the Major." See 09-ORD-070 (finding that Roederer Correctional Complex did not violate the Act in failing to respond to a request that was not successfully transmitted to the agency). As such, the record on appeal does not contain sufficient evidence for this office to conclusively resolve the related factual dispute. Accordingly, we find no violation of KRS 61.880(1).
Further, the record establishes that KSP fulfilled its obligations under the Act by conducting "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested," and then providing Appellant a copy of all existing responsive records located. See 95-ORD-96, p. 4; 01-ORD-38; 12-ORD-030. Agencies meet this "good faith" standard by sufficiently documenting their effort to identify and locate responsive records and explain why, if any, records do not exist. See 16-ORD-097; 17-ORD-273. KSP provided evidence that, upon receipt of the appeal, its records custodian searched for and located a letter matching the description of records Appellant provided in his request. "Our analysis turns not on whether the fruits of the agency's search met the requester's expectations, but whether it conducted an adequate search." 06-ORD-042, p. 5. As such, we find no substantive violation 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.