March 5, 1996

In re: B. D. Harrell/Fulton County Clerk


This matter comes to the Attorney General on appeal from the Fulton County Clerk's handling of B. D. Harrell's January 4, 1996, request for copies of the oath and bond of Fulton County Judge Executive, Harold M. Garrison, and the oath and bond of Fulton County Jailer, Ricky D. Parnell. Mr. Harrell, publisher of Henderson, Kentucky's Tell It Like It Is newspaper, indicates that as of January 31, 1996, the day he initiated his open records appeal, he had received no response to his request.

On February 6, 1996, this office issued a notification of appeal to the Fulton County Clerk, and contacted her office to ascertain the status of Mr. Harrell's request. We were advised by Lesia LaRue, Fulton County Clerk, that the records Mr. Harrell requested were sent to him in mid-January, 1996. Nevertheless, she agreed to send him a second set of those documents.

A short time later, Mr. Harrell again wrote this office to advise us that he had not received all of the records requested. Specifically, he had not been furnished with “certified” copies of the County Judge's or the Jailer's “recorded” oaths. Moreover, he challenged the validity of the copies of their official bonds, noting that the page and book numbers did not appear on either document. Finally, he questioned why the clerk did not fill out the disposition portion of his request form.

In an undated letter from the county clerk to Mr. Harrell, a copy of which was sent to this office, Ms. LaRue confirmed that she provided Mr. Harrell with copies of the bonds in mid-January, and was unaware that he had not received them. She again provided him with copies of the bonds, noting the page and book number in the disposition portion of the request form. Although she did not advise Mr. Harrell, she indicated in the cover sheet of her fax transmission to this office that these were the only records responsive to his request on file in her office.

We are asked to determine if the Fulton County Clerk violated provisions of the Open Records Act in responding to Mr. Harrell's request. For the reasons set forth below, we conclude that although procedurally deficient, the clerk's response was substantively correct.

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 agency action.

Although the clerk cannot establish when she originally responded to Mr. Harrell's January 4 request, she concedes that her response was issued in mid-January, clearly exceeding the three day statutory deadline for agency response. Moreover, there appears to be no written communication memorializing this response, thus contravening KRS 61.880(1) relative to the agency's duty to respond in writing, and impeding this office's ability to review a complete written record on appeal. We urge the county clerk 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 Fulton County Clerk substantially complied with the Open Records Act by providing Mr. Harrell with all records which are responsive to his request, and which are in her custody. KRS 61.872(3)(a) and (b) provides:

(3) A person may inspect the public records:

(a) During the regular office hours of the public agency; or

(b) By receiving copies of the public records from the public agency through the mail. The 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 precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.

Mr. Harrell requested copies of the county judge and jailer's bonds, and that request was honored. Although the clerk offered no explanation for the absence of the page and book numbers on these documents, she subsequently provided Mr. Harrell with this information. Mr. Harrell may, at his discretion, personally inspect these records at the cited page and book number to confirm their authenticity.

With respect to Mr. Harrell's request for “certified” copies of the county judge and jailer's “recorded” oaths, we find that although Ms. LaRue erred in failing to advise him that the county clerk does not have custody of these records per KRS 61.872(4), or that no such records exist per 96-ORD-41, and opinions cited therein, her failure to satisfy this portion of his request cannot be said to constitute a violation of the Open Records Act. This office has long recognized that a public agency cannot furnish access to documents which it does not have or which do not exist. Our decision in an open records appeal is, in general, limited to two questions: whether the public agency has in its possession the documents requested, and if it does, whether those documents are subject to public inspection. The Fulton County Clerk improperly failed to advise Mr. Harrell that her office does not have custody of the county judge's and jailer's oaths. She has, however, advised this office that she does not have the records. In the absence of evidence to the contrary, [1] we must assume the truthfulness of the county clerk's assertions.

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:

Lesia LaRue

Fulton County Clerk

Fulton County Courthouse

Hickman KY 42050

B. D. Harrell

Tell It Like It Is Newspaper

1329 Clay Street

Henderson KY 42420


[1] Neither KRS 62.010, nor Section 228 of the Kentucky Constitution, relating to the oaths of public officials, require the recording of the oath. If no such record was made, the clerk obviously cannot provide it.