23-ORD-039
February 20, 2023
In re: Phillip Hamm/McCracken County Sheriff’s Office
Summary: The McCracken County Sheriff’s Office (the “Sheriff’s
Office”) did not violate the Open Records Act (“the Act”) when it denied
a request for records that do not exist. However, the Sheriff’s Office
violated the Act when it denied part of the request under KRS 61.872(6)
without clear and convincing evidence that the request was
unreasonably burdensome or intended to disrupt its other essential
functions.
Open Records Decision
Phillip Hamm (“Appellant”) submitted a request for records to the Sheriff’s
Office containing five subparts. In subpart one, the Appellant sought “the internal
approval process for record destruction.” In subpart two, he sought a copy of the
records retention schedule the Sheriff’s Office used in 2022. In subpart three, he
sought “the completed Records Destruction Certificate for the photos used” to identify
a person during a specific police interview conducted in 2022. In subpart four, he
sought photographs taken at a specific residence during an investigation. And, in
subpart five, he sought copies of all “search warrants applied for, denied, issued,
executed and not executed by employees of the McCracken County Sheriff’s Office” in
2022.
In a timely response, the Sheriff’s Office provided photographs responsive to
subpart four of the request.1 However, the Sheriff’s Office denied subparts one, two,
1
The Appellant does not appeal the Sheriff’s Office’s response to subpart four of his request.and three because the records requested “never existed or no longer exist.” The
Sheriff’s Office also stated it “follows the Kentucky Library & Archives retention
schedule” and provided the contact information for the records custodian for the
Kentucky Department of Libraries and Archives (“the Department”) so the Appellant
could obtain the requested retention schedule. Finally, the Sheriff’s Office fully
denied subpart five because “pursing [sic] through each search warrant” to determine
which were exempt from inspection and which could be inspected subject to
redactions “would be a burdensome task.” The Sheriff’s Office explained that many of
the warrants contain personal information, are being used in an active criminal
investigation, or are protected from disclosure by federal law. It therefore denied the
request as unreasonably burdensome under KRS 61.872(6). The Sheriff’s Office also
claimed the Appellant’s request was intended to disrupt its other essential functions.
This appeal followed.
The Sheriff’s Office denied subparts one, two, and three of the Appellant’s
request by stating affirmatively, both initially and on appeal, that the records
responsive to those subparts do not exist. Once a public agency states affirmatively
that a record does not exist, the burden shifts to the requester to present a prima
facie case that the requested record does or should exist. See Bowling v. Lexington–
Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). If the requester is able to
make a prima facie case that the records do or should exist, then the public agency
“may also be called upon to prove that its search was adequate.” City of Fort Thomas
v. Cincinnati Enquirer, 406 S.W.3d 842, 848 n.3 (Ky. 2013) (citing Bowling, 172
S.W.3d at 341).
Here, to make a prima facie case, the Appellant states “[i]t is not possible for
something to have both ‘never existed’ and ‘no longer exist.’” He requests the Sheriff’s
Office specify whether the records were never created or whether they were created
but later destroyed. The Appellant also claims the Sheriff’s Office should not follow
the Department’s retention schedule because the Sheriff’s Office is a “local agency.”
However, KRS 171.530 requires a division of the Department, the State Library,
Archives, and Records Commission (“the Commission”), to promulgate standards for
state and local records retention schedules. Although each local agency is responsible
for its own records management system, the Commission has promulgated “general
retention schedules” for many local agencies, including county sheriffs.2 The
Commission has also promulgated a policy for destroying public records. See
2
See
Records
Retention
Schedule:
County
Sheriff’s,
available
at
https://kdla.ky.gov/records/RetentionSchedules/Documents/Local%20Record…
heriffRecordsRetentionSchedule.pdf (last accessed Feb. 20, 2023).725 KAR 1:030 § 2 (“State and local agencies shall follow the procedures for disposing
of eligible public records described in Destruction of Public Records: A Procedural
Guide”). The Appellant does not cite a statute or regulation requiring the Sheriff’s
Office to adopt policies separate from these general policies established by the
Commission. Moreover, the Commission is the custodian of these policies, and the
Sheriff’s Office directed the Appellant to the Commission’s record custodian when it
claimed to not possess a copy of the retention schedule. See KRS 61.872(4). Thus, the
Sheriff’s Office did not violate the Act by denying subparts one and two because it did
not possess any responsive records.
With respect to subpart three, the Appellant argues the Sheriff’s Office was
required to complete a Records Destruction Certificate3 when it allegedly destroyed
a photograph allegedly shown to a person during an interview. He states he
previously requested to inspect the photograph, but in response to that request the
Sheriff’s Office advised the photograph “was not retained.” Thus, the Appellant
argues the photograph existed at one time but no longer does, and the Sheriff’s Office
was required to complete a Records Destruction Certificate documenting the
photographs destruction. On appeal, the Sheriff’s Office states it showed the
interviewee a photograph that was “publicly available” and not catalogued as
evidence. It therefore claims it was not required to complete a Records Destruction
Certificate when it did not retain the requested photograph.
Regardless of whether the Sheriff’s Office should have completed a destruction
certificate for the photograph, it has explained on appeal that it did not. Thus, it has
explained why no responsive records exist. See Eplion v. Burchett, 354 S.W.3d 598,
603 (Ky. App. 2011). Accordingly, the Office cannot find that the Sheriff’s Office
violated the Act by denying inspection of a record that does not exist.
The Sheriff’s Office also denied subpart five, which sought all search warrants
from 2022 regardless of whether they were served, because the request placed an
unreasonable burden on it. The Sheriff’s Office also claimed this request was intended
to disrupt its other essential functions. Under KRS 61.872(6), “[i]f the application
places an unreasonable burden in producing public records or if the custodian has
reason to believe that repeated requests are intended to disrupt other essential
functions of the public agency, the official custodian may refuse to permit inspection
3
As stated previously, 725 KAR 1:030 § 2 incorporates by reference the Commission’s policy for
destroying public records. The policy requires agencies to document the destruction of public records
using
a
Records
Destruction
Certificate,
a
copy
of
which
is
available
at
https://kdla.ky.gov/records/Documents/kyrecordsdestruction.pdf (last accessed Feb. 20, 2023).of the public records or mail copies thereof. However, refusal under this section shall
be sustained by clear and convincing evidence.”
KRS 61.872(6) contains two separate but interrelated grounds to deny a
request. The more common of the two applies when “the application places an
unreasonable burden in producing records.” Id. (emphasis added). This portion of
KRS 61.872(6) is specific to the request, or “application,” if it alone places an
unreasonable burden on the agency. In making such a determination, the Office
considers the number of records the request implicates, whether the records are in a
physical or electronic format, and whether the records contain exempt material
requiring redaction. See, e.g., 97-ORD088 (a request implicating thousands of
physical files stored in several locations throughout the state and each file needed to
be reviewed for redactions pursuant to state and federal law was unreasonably
burdensome). An agency can also establish an unreasonable burden if it does not
catalog its records in such a manner that they can be searched using a keyword. See,
e.g., 96-ORD-042 (unreasonable burden found where the agency thousands of files
needed to be reviewed to determine if the records were responsive to the keywords in
the request).
In support of its claimed exemption, the Sheriff’s Office states that subpart five
seeks a “large volume of records” and “would require an extensive amount of
research.” In its initial response to the Appellant, the Sheriff’s Office advised it had
served “over 100” search warrants in 2022, but many warrants were not served,
making the overall number of warrants “much higher.” The Sheriff’s Office states it
does not have a “centralized depository of search warrants” and that the warrants
“are kept in each respective [open or closed] criminal case file.” Thus, to comply with
the request, the Sheriff’s Office would have to review individual criminal case files,
the number of which has not been disclosed but exceeds 100, to determine which are
active and which are closed. Those warrants in active cases would likely be exempt
under KRS 61.878(1)(h) or KRS 17.150, and those in closed cases would likely be
subject to inspection with personal information redacted under KRS 61.878(1)(a).
Such a task is not an unreasonable burden under KRS 61.872(6). Although the
number of records at issue is not the only factor the Office considers, it is the most
important one. See e.g., 22-ORD-182. The Office has previously found that searching
and sorting through 5,000 emails to separate exempt emails from nonexempt emails
was not an unreasonable burden, when it was not clear the emails contained
information that was required to remain confidential by law. See, e.g., 22-ORD-255.
Although the Sheriff’s Office cited 08-ORD-060 in its response to the Appellant tosupport its denial, the Office in that decision agreed with the agency that sorting
through 42,500 dispatch calls would be an unreasonable burden because various
confidentiality laws applied to the records withheld. In contrast, here the Sheriff’s
Office has not provided a specific number of criminal cases through which it has to
search because it claimed the search itself would be burdensome. It stated only that
“more than 100” warrants were served, and the number of those that had not been
served is “much higher.” The agency must provide clear and convincing evidence of
the burden, which requires it to search for records in the first instance to quantify, or
in good faith estimate, the number of potentially responsive records. See, e.g., 23-
ORD-024. A number “much higher” than 100 is not clear and convincing evidence
that the request places an unreasonable burden on the Sheriff’s Office.
The Sheriff’s Office also claims subpart five is intended to disrupt its other
essential functions, which is the second basis on which an agency may invoke
KRS 61.872(6). To determine whether a request is “intended” to disrupt the essential
functions of an agency, the Office considers different factors than those described
above. This exemption requires the agency to provide evidence of factors separate
from the request itself, because the official custodian must have “reason to believe”
the requester’s “intent” is not to inspect records, but to cause disruption. Id. Instead
of considering the number of records implicated, the Office will consider the number
of requests the requester has made in close proximity to each other. More requests
made over a shorter period of time may constitute some evidence of an intent to
disrupt, but it alone is not clear and convincing evidence of such intent. See, e.g., 15-
ORD-015; 96-ORD-193. The agency must also provide other evidence to support its
belief of the requester’s intent, such as proof the requester has failed to retrieve or
pay for copies of records, or statements from the requester indicating malicious
intent. For example, the requester in 15-ORD-015 offered to stop making requests for
records in exchange for money. Evidence a requester stated he intends to disrupt an
agency’s functions because of some other grievance with the agency would also
constitute appropriate evidence to support denial under KRS 61.872(6).
Here, the Sheriff’s Office states the Appellant has submitted “at least 20”
requests, but it is not clear over what period of time those 20 requests were submitted.
The Sheriff’s Office also states the request is “excessively broad” since “it would
include a vast majority of files that have nothing to do with [the Appellant].”
Ordinarily, the purpose for which the requester intends to use the records is
irrelevant, unless the purpose is for commercial use. See KRS 61.874(4). But given
the “intent” element of KRS 61.872(6) as used in this context, there may be instances
in which repeated requests submitted over a short period of time, seeking broadswaths of records, may be sufficient proof of intent to disrupt the agency’s essential
functions. This is not such an instance, however, because it is not clear from this
record how many of the Appellant’s previous 20 requests sought broad swaths of
records. Nor is there any other evidence in this record of malicious intent by the
Appellant, such as a pattern of failing to retrieve records, a history of making
unreasonable and extraneous demands in exchange for ceasing requests, or
statements he has made demonstrating a specific intent to cause disruption.
Accordingly, the Sheriff’s Office has not provided clear and convincing evidence to
support its denial under KRS 61.872(6).
In sum, the Sheriff’s Office did not violate the Act when it denied subparts one,
two, and three of the request because records responsive to those subparts either
never existed or do not currently exist within its possession. However, the Sheriff’s
Office did violate the Act when it denied subpart five under KRS 61.872(6) without
providing clear and convincing evidence in support of its denial.
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.
Daniel Cameron
Attorney General
s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#031
Distributed to:
Phillip Hamm
Jana King
Ryan Norman
Cade Foster