23-ORD-086
April 13, 2023
In re: Lawrence Trageser/Spencer County Sheriff’s Office
Summary: The Spencer County Sheriff’s Office (“the Sheriff’s Office”)
violated the Open Records Act (“the Act”) when it failed to advise a
requester that requested records did not exist. The Sheriff’s Office did
not violate the Act when it could not provide records that do not exist.
Open Records Decision
On March 13, 2023, Lawrence Trageser (“Appellant”) asked the Sheriff’s Office
to provide a termination letter it sent to a named special deputy, as well as his
personnel file, including “application for employment, work history, training
credentials, current hire in position and rate of pay.” In a timely response, the
Sheriff’s Office provided only the undated termination letter and stated the special
deputy “was dismissed during the application processes due to an incomplete
application.” This appeal followed.
On appeal, the Sheriff’s Office states no responsive records exist, other than
the termination letter it provided to the Appellant. When a public agency receives a
request for inspection of public records, it must decide within five business days
“whether to comply with the request” and notify the requester “of its decision.”
KRS 61.880(1). An agency response denying inspection of public records must
“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.”
Id. The agency 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). Thus, if the requested records do
not exist, then the agency must affirmatively state as much. See, e.g., 22-ORD-038.By initially failing to advise the Appellant that the requested personnel records did
not exist, the Sheriff’s Office violated the Act.
However, once a public agency states affirmatively that requested records do
not exist, the burden shifts to the requester to present a prima facie case that
requested records do or should exist. See Bowling v. Lexington–Fayette Urb. Cnty.
Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). Here, the Appellant provides a copy of a news
article reporting that the special deputy was sworn in on December 30, 2022. The
Appellant argues that, because the special deputy was sworn in, the requested
personnel records must exist. He also claims a written application must exist because
the special deputy was dismissed “due to an incomplete application.”
On appeal, the Sheriff’s Office states that “all responsive documents within
the possession, custody, or control of the [Sheriff’s Office], including but not limited
to the Sheriff, any deputies[,] or any employees[,] were provided” to the Appellant. In
particular, the Sheriff’s Office explains that no records exist for “current hire in
position and rate of pay” because “no person has been appointed to the same position”
and because special deputies are not paid. Under KRS 70.045(1), a county sheriff
“may appoint and have sworn in and entered on the county clerk order book” a limited
number of special deputies “to assist him with general law enforcement and
maintenance of public order.” Additionally, under KRS 70.045(2), the sheriff “may
appoint and have sworn in, and entered on the county clerk order book, as many
special deputies as needed to assist him in the execution of his duties and office in
preparation for or during an emergency situation.” Special deputies do “[n]ot receive
any monetary compensation for [their] time or services.” KRS 70.045(3)(b).
Furthermore, “[t]he position of special deputy . . . is subject to the provisions of
[KRS 70.045] only.” KRS 70.045(4). Thus, other provisions of law applying to deputies
in general do not apply to special deputies, who are “appointed and dismissed on the
authority of the sheriff.” KRS 70.045(3)(a). No provision of KRS 70.045 requires a
special deputy to apply in writing for the position,1 to submit a work history, or to
complete any training before being sworn in. Accordingly, to the extent the Appellant
may have established a prima facie case that the requested personnel file exists, the
Sheriff’s Office has rebutted that presumption. Therefore, the Sheriff’s Office did not
violate the Act by failing to provide such records.
A party aggrieved by this decision may appeal it by initiating an 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
1
Admittedly, the Sheriff’s Office statement that the special deputy was “dismissed . . . due to an
incomplete application” could cause a reasonable person to conclude a partial application exists.
However, the Sheriff’s Office insists no responsive application exists and the applicable statutory
authority for hiring special deputies does not require the submission of an application.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
#131
Distributed to:
Mr. Lawrence Trageser
Cheryl R. Winn, Esq.
Corey M. Thomas, Esq.
Scott Herndon, Sheriff