February 1, 1996

In re: Jimmy Lee Curtis/Monroe County Sheriff's Department


This matter comes to the Attorney General on appeal from the Monroe County Sheriff's actions relative to Jimmy Lee Curtis's request to inspect public records pertaining to his arrest and conviction. On May 24, 1995, Mr. Curtis requested copies of extradition papers, uniform citations, and witness statements which were generated in the course of the sheriff's investigation into the incident giving rise to his arrest and conviction. Mr. Curtis also requested “[a]ny and all evidence that was sent to the crime laboratory . . . .” As of January 18, 1996, Mr. Curtis had received no response to his request.

In response to this office's notification of appeal, W. Kenneth Nevitt, attorney for the Monroe County Sheriff's Department, responded to Mr. Curtis's request on January 25, 1996. He advised Mr. Curtis as follows:

In your request to inspect public records, you did not state which incident you were referring to, but I will answer this request assuming that it is pertaining to your arson arrest. You have requested extradition papers and a uniform citation. There were no extradition papers prepared regarding this incident since you waived extradition and turned yourself in to the Monroe County Jail. The Monroe County Sheriff's Department does not maintain copies of uniform citations in their normal course of business. The Monroe County Sheriff's Department sends all of their uniform citations to the Monroe Circuit Court Clerk's Office. The Monroe County Sheriff's Department does not have any statements of any and all people involved in the investigation. If any statements were prepared in this action, they would be in the possession of the Kentucky State Police. Any and all evidence that was sent to the crime laboratory would have been sent by the Kentucky State Police and is not in the possession of the Monroe County Sheriff's Department. There were no statements made to the Monroe County Sheriff's Department during the investigation.

KRS 61.880(2) 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 agency action.

Because the Monroe County Sheriff's Department failed to respond to Mr. Curtis's request, in writing, and within three business days, its actions constituted a procedural violation of the Open Records Act. This violation is mitigated by the fact that the request was apparently sent to, but never received by, Mr. Nevitt for review and response. We urge the Sheriff's Department to review the cited provision to insure that future responses conform to the Open Records Act.

Turning to the substantive issues in this appeal, we find that the sheriff's department properly advised Mr. Curtis that it could not satisfy his request for extradition papers, uniform citations, witness statements, and evidence, since these records either do not exist or were forwarded to other agencies in the normal course of business. This office has consistently recognized that a public agency cannot furnish access to documents which it does not have or which do not exist. OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203; 94-ORD-65. In the absence of evidence to the contrary, we must assume the truthfulness of the sheriff's department's assertion that the requested records either are not in its custody or do not exist.

KRS 61.872(4) provides:

If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.

The sheriff's department properly advised Mr. Curtis that certain of the records he seeks may be in the custody of other public agencies, and identified these agencies. In our view, his response was substantively consistent with the Open Records Act.

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. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.






Distributed to:

Bev McClendon

P. O. Box 216

Tompkinsville KY 42167

Jimmy Lee Curtis, #114974

Green River Correctional Complex

P. O. Box 9300

Central City KY 42330-9300

W. Kenneth Nevitt

Attorney at Law

Williams & Wagoner

One Oxmoor Place

101 Bullitt Lane, Suite 202

Louisville KY 40222