23-ORD-117
May 31, 2023
In re: Lynn Hesselbrock/Spencer County Judge/Executive’s Office
Summary: The Spencer County Judge/Executive’s Office (“the
agency”) did not violate the Open Records Act (“the Act”) when it did not
respond to a request it did not receive.
Open Records Decision
On April 21, 2023, Spencer County Clerk Lynn Hesselbrock (“Appellant”)
allegedly submitted a request by email to the agency for a copy of “any and all
communications” between the Deputy Judge/Executive “and any current or former
employees of the Spencer County Clerk’s Office” between January 1 and April 21,
2023. After receiving no response, the Appellant initiated this appeal.
Under KRS 61.880(1), a public agency must respond to a request to inspect
public records within five business days after receiving it. On appeal, the agency
claims it never received the Appellant’s request because the Appellant’s email
address had been blocked by the records custodian.1 The agency points out that the
copy of the Appellant’s request submitted to this Office does not contain a date or
time stamp, and further alleges the Appellant admitted to receiving an undeliverable
notice when she attempted to email her request. This Office is unable to resolve
factual disputes between a requester and a public agency, such as whether the agency
received a request. See, e.g., 21-ORD-163. Therefore, this Office cannot find that the
agency violated the Act when it did not respond to a request it claims to have never
received.
1
The agency asserts it has “corrected the deficiency” of blocking the Appellant’s email address and
has provided all responsive records in its possession to the Appellant “within five (5) days of its actual
receipt of the request.”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
#170
Distribution:
Lynn Hesselbrock, Clerk
Cheryl R. Winn, Esq.
Corey M. Thomas, Esq.
Hon. Scott Travis