23-ORD-335
December 18, 2023
In re: James Harrison/Lee County Sheriff’s Office
Summary: The Lee County Sheriff’s Office (“the agency”) did not
violate the Open Records Act (“the Act”) when it could not provide
records that it does not possess. However, the agency subverted the
intent of the Act, within the meaning of KRS 61.880(4), when it delayed
access to records by demanding the requester describe a record he
sought with more specificity than the Act requires.
Open Records Decision
On October 30, 2023, James Harrison (“Appellant”) submitted a six-part
request to the agency for copies of records. First, he requested documentation of an
agreement between the agency and a towing company that he alleged existed in
August 2017. Second, he requested “documentation this agency has relating to towing
of vehicles and other entities when agent(s) of this agency made decisions to seize a
vehicle.” Third, he requested “documentation relating to the inventory of the contents
of” a specific vehicle. Fourth, he requested “the glossary and/or index of this agency’s
regulations and internal policies that are a matter of public records [sic].” Fifth, he
requested documentation relating to the towing company’s “duty and/or
responsibility after towing a vehicle” at the agency’s request “as it existed in August
2017.” Finally, he requested “documentation relating to the chain of custoday [sic]
and/or demand of” a specific vehicle.
In a timely response, the agency stated it had searched “the records turned
over” to the current sheriff by his predecessor, who left office in January 2023, and
those records did not contain any documentation of an agreement with the towing
company or any terms thereof. The agency also did not locate any documentation of
the vehicle in question. The agency further asserted it had “no documentation . . .
relating to towing of vehicles and other entities when an agent(s) of this office makesdecisions to seize a vehicle.” Finally, in response to the request for a glossary or index
of its regulations and internal policies, the agency stated it needed “clarification of
what this request is inquiring about.” This appeal followed.
A public agency “is responsible only for those records within its own custody or
control.” City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 856 (Ky. 2013)
(citing Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980)).
Once a public agency states affirmatively that a record is not within its custody or
control, the burden shifts to the requester to present a prima facie case that the
requested record exists. See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172
S.W.3d 333, 341 (Ky. 2005). A requester’s bare assertion that an agency must possess
requested records is insufficient to establish a prima facie case that the agency
actually possesses such records. See, e.g., 22-ORD-040. Rather, to present a prima
facie case that the agency possesses or should possess the requested records, the
requester must provide some statute, regulation, or factual support for his contention.
See, e.g., 21-ORD-177; 11-ORD-074.
Here, the Appellant asserts the current sheriff cannot “blame” his predecessor
for failing to keep proper records. Nevertheless, even if the previous sheriff’s record-
keeping was inadequate, the fact remains that the requested records from 2017 are
not within the agency’s custody or control. Similarly, although the Appellant might
wish that the agency possesses certain documentation “relating to towing of vehicles
and other entities,” his bare assertion that it should possess such documentation does
not establish a prima facie case that the records exist.
In a further effort to prove the agency possesses records from the towing
company, the Appellant attaches a September 2023 response to one of his previous
open records requests, in which the agency stated the towing company had located
some of its own records and provided them to the sheriff, who then forwarded them
to the Appellant. The Appellant then claims the agency “had a duty to keep those
documents on file” after providing them to him. However, he cites no authority for
the agency’s alleged duty to keep a copy of a private entity’s records. Thus, the
Appellant has not presented a prima facie case that the agency currently possesses
any of the records it claims not to possess. Accordingly, the agency did not violate the
Act when it could not provide such records.
The Appellant further claims the agency subverted the intent of the Act by
delaying access to records when it asked him to clarify his request for “a glossary” or
“index” of the agency’s regulations and policies. If a requester asks to receive copies
of records by mail, he must “precisely describe[ ] the public records which are readily
available within the public agency.” KRS 61.872(3)(b). When an agency receives such
a request, the agency must decide within five business days whether to grant or deny
it. See KRS 61.880(1). Under KRS 61.880(4), a person may invoke the Office’s reviewto allege “the intent of [the Act] is being subverted by an agency short of denial of
inspection,” including “delay past the five (5) day period described in” KRS 61.880(1).
Here, the Appellant precisely described records he sought to inspect: a
“glossary” or “index” of the agency’s “regulations and internal policies.” An agency
subverts the intent of the Act when it delays access to records by demanding a
requester describe the records sought with greater specificity than the Act requires.
See 23-ORD-202; 22-ORD-213. Either the agency has a glossary or index to its
regulations and internal policies, or it does not. If no such document exists, the agency
must affirmatively state no such record exists in its response to the request. See Univ.
of Ky. v. Hatemi, 636 S.W.3d 857, 867 (Ky. App. 2021); see also 20-ORD-041 (finding
a public agency has a “duty to inform the requester in clear terms that it [does] not
have the records”). Otherwise, the agency has five business days to provide the record
or to deny the request and say why. KRS 61.880(1). Because the agency delayed a
final response to the Appellant’s request after he had already precisely described the
requested record, it subverted the intent of the Act within the meaning of
KRS 61.880(4).
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
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
#523
Distributed to:
James Harrison, #095435
Joseph C. Lucas, Sheriff
Thomas Hollon, Esq.