November 21, 1994








In re: Clarence Tucker/Ohio County Sheriff's Department





This appeal originated in a request for copies of public records submitted by Mr. Clarence Tucker, an inmate at Western Kentucky Correctional Complex, to the Ohio County Sheriff's Department on October 3, 1994. Mr. Tucker requested copies of various records relating to case number 83-CR-041/042, including uniform citations, statements, and search warrants. In an undated response, Sheriff Elvis Doolin advised Mr. Tucker:


Our records show no fingerprint file nor photos [sic]. A court order will be necessary for the release of any lab work or evidence we might have regarding this case.


In a follow-up letter to this office, Sheriff Doolin stated that his office had reviewed the case reports for 1982 and 1983, and had found no report relating to Mr. Tucker. He explained that although the Ohio County Sheriff's Department served the warrant on Mr. Tucker, the Department did not investigate his case.


Mr. Tucker challenges Sheriff Doolin's response, noting that the case is now closed and no exception to the Open Records Law bars release of the requested records. He asks that we determine whether the Ohio County Sheriff's Department violated the law in responding to his request. For the reasons set forth below, we conclude that although the Department's initial response was procedurally deficient, its actions were otherwise consistent with the Open Records Law.


KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:


Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, 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 three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final action.


Sheriff Doolin failed to date his response, thus raising the question of whether he responded within three business days. Moreover, he failed to set forth a statutory basis for denial of portions of Mr. Tucker's request. We urge the Sheriff's Department to review the cited provision to insure that future responses conform to the Open Records Law.


At page four of 93-ORD-51, this office recognized that a public agency cannot afford a requester access to a document which does not exist or which it does not have in its possession or custody. In general, it is not our duty to investigate in order to locate documents which the requesting party maintains exist, but which the public agency states do not exist.


The Kentucky open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records . . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants additional inquiries. Because the Ohio County Sheriff's Department did not investigate Mr. Tucker's case, it does not have the records he seeks. Simply stated, the Ohio County Sheriff is not the custodian of those records. The question presented in this appeal is factual, and not legal, in nature.


This office has no reason to doubt the Sheriff's statement that the documents requested are not in his files. The response of the public agency was proper and consistent with the provisions and requirements of the Open Records Act insofar as the agency cannot make available for inspection a document which it does not have in its possession or custody. The only additional duty of the public agency in such a situation is to advise the requesting party as to who does have the document in question if such information is known to the agency. KRS 61.872(4). If Sheriff Doolin knows who investigated Mr. Tucker's case, he should immediately furnish Mr. Tucker with the name and location of the official custodian of that public agency's records.


Mr. Tucker and the Ohio County Sheriff's Department may challenge this decision by initiating action in the appropriate circuit court. 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.












Distributed to:


Mr. Elvis Doolin

Ohio County Sheriff

P.O. Box 186

Hartford, KY 42347


Mr. Clarence Tucker #92942


P.O. Box 5000

Eddyville, KY 42038