24-ORD-044
February 21, 2024
In re: Phillip Hamm/McCracken County Sheriff’s Office
Summary: The McCracken County Sheriff’s Office (“the Sheriff’s
Office”) did not violate the Open Records Act (“the Act”) when it denied
a request for certified copies of records or records that do not exist. The
Sheriff’s Office also did not violate the Act when it requested a resident
of the county where the records are located to make an appointment to
inspect records in person. The Act does not require the Sheriff’s Office
to comply with a request for electronic records in nonstandard format.
Open Records Decision
Phillip Hamm (“Appellant”) submitted a request to the Sheriff’s Office for
records related to a criminal investigation. His request contained 11 subparts, but in
sum, he sought the metadata associated with two deputies’ personal cell phones,
metadata associated with other electronic files, the internet search histories of the
Sheriff’s Office’s employees that resulted in obtaining a specific photograph, certified
copies of various records, and any policy “regarding the issuance of agency provided
mobile devices.” The Sheriff’s Office timely responded and denied each part of the
request for various reasons. This appeal followed.
The first four parts of the Appellant’s request sought the metadata “created”
on February 14, 2022, “from the cell phone used by” two deputies when they displayed
a photograph to an inmate during a police interview and the metadata “associated”
with the photograph. In subpart 6 of the request, the Appellant sought the internet
search histories of any employees that resulted in them obtaining the photograph of
the Appellant from his personal Facebook social media account. In subpart 10, the
Appellant sought the metadata “from” a specific cell phone “used to take the photo”
of a residence “which accompanied the application for a search warrant” at that
location. The Sheriff’s Office denied all of these requests because it claimed neither
the metadata contained on the deputies’ personal cell phones nor their personal
internet search histories were “public records” under KRS 61.870(2), and therefore,
none of these records are subject to inspection.In subpart 8, the Appellant sought the metadata related to a specific file that
was allegedly created on February 14, 2022, “at 4:16:08 pm” and “modified” at
“10:23:17” the same day. The Sheriff’s Office denied this subpart of the Appellant’s
request because it “previously supplied” the Appellant with the requested record. The
Sheriff’s Office further stated the Appellant could view the record again “by making
an appointment” with the Sheriff’s Office to inspect the record in person. Similarly,
the Sheriff’s Office invited the Appellant to make an appointment to inspect the
search warrant for the residence, which the Appellant sought in subpart 9 of the
request.
In subpart 5 of the request, the Appellant asked for a “certified copy of the
original email” a deputy sent to a district court judge to obtain the search warrant.
In subpart 7 of the request, the Appellant sought “certified copies” of three electronic
files he identified by filename. The Sheriff’s Office denied these requests because it is
not required to provide “certified copies” of records in response to a request under the
Act.
Finally, subpart 11 of the request sought a copy of any document or policy
“regarding the issuance of agency provided mobile devices.” The Sheriff’s Office
denied this request because no responsive records exist.
On appeal, the Appellant relies on the Office’s decision in 23-ORD-057, which
found that the photograph giving rise to all these requests is a public record because
it was “used” for an official law enforcement purposes, i.e., to obtain a witness’s
identification that was subsequently used to obtain and execute a search warrant.
The Appellant argues the metadata related to the photograph is inseparable from the
photograph itself, and thus, if the photograph is a public record, then the metadata
must be as well. In response, the Sheriff’s Office continues to assert that metadata
contained on its employees’ personally owned cell phones is not a “public record”
under KRS 61.870(2). However, it also notes that the photograph at issue in 23-ORD-
057 was destroyed, and therefore, any metadata associated with the photograph
would have also been destroyed. Further, the Sheriff’s Office claims that, even if the
metadata still exists, its employees are unable to extract it. Rather, the Sheriff’s
Office would have to hire a private contractor at significant expense to perform the
extraction. Relying on 19-ORD-091, the Sheriff’s Office argues that, to the extent
metadata could ever be considered a “public record,” it exists in a nonstandard format.
As such, it has discretion whether to comply with the Appellant’s request. On this
last point, the Office agrees. Thus, it is unnecessary to determine whether the
metadata on the deputies’ personal cell phones is a “public record” under
KRS 61.870(2), because even if it is, the Sheriff’s Office has discretion whether to
provide it.The Act divides electronic records into two possible formats: standard and
nonstandard. See KRS 61.874(2)(b). The “standard format” is “a flat file electronic
American Standard Code for Information Interchange (ASCII) format.” Id. Any
format other than ASCII format is a nonstandard format. Id. Thus, “[i]f the public
agency maintains electronic public records in a format other than ASCII, and this
format conforms to the requestor’s requirements, the public record may be provided
in this alternate electronic format for standard fees as specified by the public agency.”
Id. (emphasis added). In other words, a public agency has discretion whether to
provide electronic records in a format other than ASCII. In 19-ORD-091, the Office
determined that metadata contained on public agency devices is a “public record”
under KRS 61.870(2), but that such data is not maintained in ASCII format, and
therefore, a public agency has discretion whether to comply with a request for
metadata. Because the Sheriff’s Office has discretion whether to comply with a
request for metadata, it did not violate the Act when it denied the Appellant’s
request.1
Nor did the Sherriff’s Office violate the Act when it denied the Appellant’s
requests for “certified copies” of various records or when it requested that he make
an appointment to view records in person. See 11-ORD-201 (finding no violation when
an agency required a person residing in the county to inspect records in person and
comply with the agency’s procedure for obtaining certified copies of records). No
provision of the Act requires a public agency to certify copies of its public records. See,
e.g., 03-ORD-207. Rather, the Act only entitles a resident of the Commonwealth to
receive “copies” of public records in exchange for a reasonable fee that does not exceed
the actual cost of making the copies. See KRS 61.874(3).
Moreover, a “public agency shall mail copies of the public records to a person
whose residence or principal place of business is outside the county in which the public
records are located after he or she precisely describes the public records which are
readily available within the public agency.” KRS 61.872(3)(b) (emphasis added).
Because a public agency is only required to mail records to a person who resides, or
whose principle place of business is located, outside of the county, the Office has held
that a public agency can require a person residing in the county where the records
are located to exercise his right of inspection in person. See 11-ORD-201. Although
any person has the right to inspect records in person at the public agency during
normal business hours, KRS 61.872(3)(a), the Office has found that a public agency
does not violate the Act when it merely attempts to plan ahead for the requester’s
1
In an attempt to prove the Sheriff’s Office is capable of extracting metadata, the Appellant provides
1,500 pages of information he received from the Sheriff’s Office in response to a request for metadata
associated with body-worn cameras. However, cell phones are not body-worn cameras and there is no
proof in this record that metadata contained in cell phones is stored in ASCII format or that it can be
extracted in the same way metadata is extracted from body-worn cameras.visit and have the responsive records readily available for his inspection.2 See, e.g.,
20-ORD-013. Of course, a public agency cannot prevent a person from exercising the
right of inspection by making appointments difficult. See, e.g., 15-ORD-182 (finding
a violation when an agency continually cancelled appointments); 93-ORD-48 (finding
a violation when the agency limited the hours for inspection from 8:00 a.m. to 11:00
a.m. for all requesters despite the agency not closing until 4:30 p.m.). But here, the
Sheriff’s Office states it merely requested that the Appellant, who resides in
McCracken County, schedule a time to inspect the requested records so they could be
gathered and placed in a secure location for his inspection. There is no evidence that
the Sheriff’s Office has placed unreasonable restrictions on the Appellant’s right to
inspection or that it has a pattern of cancelling the Appellant’s appointments.
With respect to the Appellant’s request for a policy “regarding the issuance of
mobile devices,” the Sheriff’s Office claims no such record exists. Once a public agency
states affirmatively that a record does not exist, the burden shifts to the requester to
present a prima facie case that the requested record does or should exist. See Bowling
v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). If the
requester makes a prima facie case that the records do or should exist, then the public
agency “may also be called upon to prove that its search was adequate.” City of Fort
Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 848 n.3 (Ky. 2013) (citing Bowling,
172 S.W.3d at 341). Here, the Appellant has not established a prima facie case that
the Sheriff’s Office possesses a policy regarding the issuance of mobile devices.
Rather, he merely asserts that one should exist in light of Sheriff’s Office employees
using mobile devices to conduct law enforcement business. The Office’s role in these
disputes is to determine whether a public agency has complied with the Act,
KRS 61.880(2)(a), not to pass judgment on the prudence of enacting any particular
policy. Because the Appellant has not made a prima facie case that the requested
policy exists, the Office cannot find that the Sheriff’s Office violated the Act by not
providing the requested policy.
Finally, the Sheriff’s Office denied the Appellant’s request for its employees’
internet search history for the Facebook photograph because data on privately owned
devices are not “public records.” On appeal, the Sheriff’s Office states the “search was
performed on a private mobile phone on a private Facebook account. Therefore, no
record exists within custody [sic] of the agency.” The Sheriff’s Office further states it
“does not even know if a search record would exist in the possession of Facebook or
Meta ([the] parent company of Facebook).” The Act defines “public record” as “all
2
Indeed, given that the Act allows a public agency up to five business days to determine whether to
comply with a request, and to determine whether any exemptions apply to responsive records,
KRS 61.880(1), there is no basis to conclude that a person can demand immediate entry into a public
agency and start perusing its files at will. It stands to reason, therefore, that the public agency may
first ascertain when a requester plans to come and exercise his right of inspection so that the records
are readily available and any other internal security controls can be established.books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software,
or other documentation regardless of physical form or characteristics, which are
prepared, owned, used, in the possession of or retained by a public agency.”
KRS 61.870(2) (emphasis added). As explained in 23-ORD-057, the photograph was
“used” to obtain an identification and, subsequently, a warrant. An internet search
history is not a photograph. Assuming, without deciding, that “internet search
history” could be considered “documentation regardless of physical form or
characteristic,” there is no evidence here that the deputies’ search histories on their
privately owned devices are “prepared, owned, used, in the possession of or retained
by a public agency.” KRS 61.870(2). The deputies did not show their search history to
the suspect to obtain an identification—they showed him the photograph that was
obtained as a result of the search. Therefore, unlike the photograph, the search
history was not “used” by the Sheriff’s Office for an official law enforcement purpose.
Moreover, to the extent a search history was “prepared,” it would have been
prepared by a private company, such as an internet service provider, Meta, or some
other private company. The Sheriff’s Office, after all, does not log every search
performed by its employees on private devices into a document it possesses or
retains.3 Simply put, the deputies’ internet search histories on their privately owned
devices are not “public records,” and therefore, are not subject to inspection.
Accordingly, the Sheriff’s Office did not violate the Act when it denied this part of the
Appellant’s request.
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.
Russell Coleman
Attorney General
/s/ Marc Manley
Marc Manley
Assistant Attorney General
3
In contrast, a public agency might choose to monitor its employees’ internet traffic on the agency’s
equipment using specialized software for productivity analysis or other legal reasons. To the extent
such an agency possesses a log of that activity, then the log could potentially be a “public record”
subject to inspection unless an exemption applies.#35
Distributed to:
Phillip Hamm
Cade Foster
Ryan Norman