23-ORD-163
July 6, 2023
In re: Scott Roberts/Muhlenberg County Clerk
Summary: The Muhlenberg County Clerk (the “Clerk”) violated the
Open Records Act (“the Act”) when she failed to appropriately respond
to a request to inspect records.
Open Records Decision
On May 30, 2023, Scott Roberts (“Appellant”) emailed two requests to the Clerk
to inspect various records relating to the May 2023 primary elections.1 Having
received no response by June 12, 2023, the Appellant initiated this appeal.
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.” Or, if
responsive records are “in active use, in storage or not otherwise available,” a public
agency may delay access to them by stating the earliest date on which they will be
available and a detailed explanation of the cause of the delay. KRS 61.872(5).
However, this Office has consistently found it is unable to resolve factual
disputes between a requester and a public agency, such as whether a requester
1
Specifically, the Appellant sought “the final signed or most recent unsigned contract and/or
purchase agreement with the vendor for e-pollbooks” used during the May 2023 primary elections as
well as an invoice or other documents which “show pricing, scope of services, and full terms of the
contract.” The Appellant also sought “the final signed or most recent unsigned contract and/or
purchase agreement with the vendor for video surveillance of election machines” for the thirty days
following the May 2023 primary election elections as well as an invoice or other documents which
“show pricing, scope of services, and full terms of the contract.”received an agency’s response to a request. See 21-ORD-233 (agency claimed it issued
a response but the requester claimed he did not receive it); see also 22-ORD-125
(agency claimed it did not receive the request); 22-ORD-100 (same); 22-ORD-051
(same); 21-ORD-163 (same).
Here, the Clerk provides a copy of the response she claims to have mailed to
the Appellant on June 5, 2023, which was the fourth business day after the Appellant
submitted his request. Accordingly, this Office cannot resolve the factual dispute
between the parties about whether the Clerk issued the response or whether the
Appellant received it, and therefore, cannot find that the Clerk’s response was
untimely in violation of the Act.
However, the Clerk’s response neither granted nor denied the Appellant’s
request. It stated only that the Clerk is “in the process of formulating [its] response
and anticipate[s] completion within the next thirty (30) days.” Further, the Clerk did
not give a detailed explanation for the cause of the delay. KRS 61.872(5). Therefore,
the Clerk violated the Act when she did not respond appropriately to the Appellant’s
request.
A party aggrieved by this decision may appeal it by initiating an 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/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#249
Distributed to:
Scott Roberts
Crystal Smith
Ryan Rice