23-ORD-043
February 22, 2023
In re: Andrew Brinegar/Livingston County Clerk’s Office
Summary: The Livingston County Clerk’s Office (“the Clerk’s Office”)
violated the Open Records Act (“the Act”) when it failed to explain its
denial of a request for records and made no effort to identify the proper
custodian of those records it claimed not to have in its custody or control.
Open Records Decision
On January 24, 2023, Andrew Brinegar (“Appellant”) requested to inspect in
person, or obtain copies of, certain records from the Clerk’s Office. First, the Appellant
requested all records pertaining to him, or to a certain property owned by him,
between August 1, 2022, and January 24, 2023. He specified that this request
included “copies of all emails and text messages from all county employees from all
county email accounts, personal email account, county cellphones, private cellphones,
and all other forms of communications, including social media, that relate to the
county employees [sic] public service role and/or in the performance of their
government function.” Second, the Appellant requested “copies of all county sheriff
dispatch logs” from December 9, 2022 at 9:00 p.m. to December 10, 2022 at 3:00 a.m.
Finally, he requested “copies of all body camera and dash camera footage from all on
duty county sheriff employees” during the same time period.
In a timely response, the Clerk’s Office granted inspection of records pertaining
to the Appellant “to the extent that such records are recorded in” the Clerk’s Office,
but denied the remainder of the Appellant’s requests. The Clerk’s Office stated no
basis for denying the request for records pertaining to the Appellant’s property. With
regard to the Appellant’s request for communications from county employees relating
to him or his property, the Clerk’s Office asserted the Appellant’s request sought
“public records containing information of a personal nature where the public
disclosure thereof would constitute a clearly unwarranted invasion of personalprivacy pursuant to KRS 61.878(1)(a), preliminary drafts, notes correspondence [sic]
with private individuals, other than correspondence which is nitended [sic] to give
notice of final action of a public agency pursuant to KRS 61.878(1)(i).”
The response from the Clerk’s Office did not specifically mention the
Appellant’s requests for dispatch logs or camera footage. However, the Clerk’s Office
denied the request in general “to the extent that the Livingston County Clerk is not
the custodian of [the requested] records” and stated the Appellant “may need to seek
such other records from other offices within Livingston County government.” Finally,
the Clerk’s Office claimed “the scope of [the] request is [sic] places an unreasonable
burden in producing public records as contemplated by KRS 61.872(6).” This appeal
followed.
When a public agency denies a request under the Act, it must state the
exception on which it relies. KRS 61.880(1). Here, the Clerk’s Office stated no specific
basis for denying the Appellant’s requests for dispatch logs, camera footage, or
records pertaining to the identified property. By failing to give a specific reason for
denying those requests, the Clerk’s Office violated the Act.
Furthermore, an agency citing an exception under KRS 61.878(1) must give “a
brief explanation of how the exception applies to the record withheld.” KRS 61.880(1).
The agency’s explanation must “provide particular and detailed information,” not
merely a “limited and perfunctory response.” Edmondson v. Alig, 926 S.W.2d 856, 858
(Ky. 1996). “The agency’s explanation must be detailed enough to permit [a
reviewing] court to assess its claim and the opposing party to challenge it.” Ky. New
Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 81 (Ky. 2013); see also City of Ft.
Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 848–49 (Ky. 2013) (noting the
agency’s “proof may and often will include an outline, catalogue, or index of
responsive records and an affidavit by a qualified person describing the contents of
withheld records and explaining why they were withheld”). Here, in denying the
Appellant’s requests for employee communications pertaining to him or his property,
the Clerk’s Office described no records to which KRS 61.878(1)(a) or (i) purportedly
applied. Instead, it merely recited the text of those exceptions without explaining how
they applied to any specific records. An agency response that does “little more than
recite the language of [the] exception” does not meet the requirements of KRS
61.880(1). 22-ORD-204; 19-ORD-191; 05-ORD-179. Therefore, the Clerk’s Office
violated the Act.
Moreover, the Clerk’s Office provides no further explanation of its denial on
appeal. A public agency carries the burden of proof at all times in an open records
appeal. KRS 61.880(2)(c). Because the Clerk’s Office has not explained how KRS
61.878(1)(a) or (i) applies to any requested records, it has failed to meet its burden of
proof to sustain its denial of the Appellant’s request.Furthermore, “[i]f the application places an unreasonable burden in producing
public records[,] the official custodian may refuse to permit inspection 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) (emphasis added). Here, the agency
claimed the Appellant’s request was unreasonably burdensome, but has not
attempted to support that claim with any evidence or explanation. Therefore, the
Clerk’s Office has not established by clear and convincing evidence that the
Appellant’s request is unreasonably burdensome, as required by KRS 61.872(6).
Accordingly, the Clerk’s Office violated the Act when it denied the Appellant’s
request.
Finally, under KRS 61.872(4), “[i]f the person to whom the application is
directed does not have custody or control of the public record requested, that person
shall notify the applicant and shall furnish the name and location of the official
custodian of the agency’s public records.” Here, the Clerk’s Office did not identify the
requested records of which it does not have custody or control, or furnish any
information regarding the proper custodian to whom the Appellant should direct his
request. On appeal, the Clerk’s Office claims it did not do so because the Appellant’s
“request was so broad in scope and lacked the requisite specificity to provide all [sic]
such custodians.” Again, however, the Clerk’s Office fails to identify the types of
requested records of which it is not the custodian. At a minimum, the Clerk’s Office
should be able to provide the Appellant with information about obtaining records
from the county sheriff’s office. Thus, the Clerk’s Office violated the Act when it failed
to make any effort to comply with KRS 61.872(4).
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 within 30 days
from the date of this decision. 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 proceedings. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#41Distributed to:
Mr. Andrew Brinegar
Allen O. Wilson, Esq.
Sonya Williams, Clerk