Opinion
Opinion By: Daniel Cameron, Attorney General; Matthew Ray, Assistant Attorney General
Open Records Decision
On May 23, 2022, Mark Graham ("Appellant") submitted a request to the Clerk seeking various voting records, election administration records, communications, and meeting minutes and agendas from a meeting of the local Board of Elections. 1Although he received a message from the Clerk confirming receipt of his request, the Appellant claims he received no further response from the Clerk. Therefore, he initiated this appeal on May 31, 2022.
On appeal, the Clerk claims that it did issue a timely response to the Appellant. As proof, the Clerk submits a copy of a letter dated May 25, 2022, that it claims to have sent to the Appellant containing its response and 17 pages of responsive records. 2
Under KRS 61.880(1), upon receiving a request for records under the Act, a public agency "shall determine within five (5) [business] days . . . 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 five (5) day period, of its decision." Here, the Clerk admits to receiving the Appellant's request on May 23, 2022, but also claims to have responded to that request on May 25, 2022. The Appellant claims that he did not receive any response from the Clerk except the May 23, 2022 email that confirmed receipt of his request.
Historically, this Office has found that it cannot resolve a factual dispute between the parties, such as whether the requester received the public agency's response when the agency provides competing proof that the response was issued. See, e.g. , 22-ORD-024; 21-ORD-233; 21-ORD-163. Accordingly, this Office cannot find that the Clerk's Office failed to issue a response to the Appellant's request within five business days. 3
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from the date of this decision. Under 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 proceedings. The Attorney General will accept notice of the complaint emailed to OAGAppeals@ky.gov.
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