April 14, 1997





In re: Vicki Elliott/Shelby County Fiscal Court



Open Records Decision



This is an appeal from the Shelby County Fiscal Court’s response to Vicki Elliott’s open records request for copies of records relating to a proposed Shelbyville/Shelby County Airport Board. We are asked to determine if the fiscal court violated provisions of KRS 61.870 to 61.884 in its response. We find that the fiscal court’s response was procedurally deficient, but correct in all other respects.


On March 6, 1997, Ms. Elliott tendered a request for "all of the paperwork submitted . . . to Fiscal Court in regards to a proposed Shelbyville/Shelby County Airport Board [including] letter[s] of support." On March 12, 1997, Shelby County Judge/Executive Robert J. Stratton’s secretary Mary Joe Wiley faxed a response to Ms. Elliott. Ms. Wiley explained that Judge Stratton had requested that the county attorney review Ms. Elliott’s request to determine whether the request should be honored, thus occasioning a brief delay. Ms. Wiley sent Ms. Elliott a copy of a letter from Joseph A. Kirwan, an attorney representing the Shelby County Aviation Enthusiasts, to Judge Stratton in which Mr. Kirwan voiced support for an airport board, an unaddressed letter from the Shelby County Aviation Enthusiasts, also voicing support for the board, a list of 21 people who had written letters of support for the board, and the associations they represent, and a draft ordinance relating to the creation of an airport board. On March 13, Ms. Elliott appealed to the Attorney General.


On March 20, 1997, Shelby County Attorney James Hite Hays sent a letter to this office in which he defended the fiscal court’s actions. Mr. Hays stated that the fiscal court and Ms. Elliott engaged in a "regular dialogue" from the date her request was received until the requested records were faxed to her, and that at no time was her request denied. Although he was told that Ms. Elliott "did not want any of the records until all could be provided to her," Mr. Hays advised the fiscal court to immediately send her "all that [the court] had." This did not include the actual letters of support, which were not in the fiscal court’s possession. He reiterated that all existing documents were faxed to Ms. Elliott.


We briefly address the procedural issues in this appeal. The procedural obligations of public agencies in responding to open records requests are codified at KRS 61.880(1). That statute requires agencies to issue written responses within three business days notifying the requester of its decision vis-a-vis the request. Although there was an ongoing discussion between the fiscal court and Ms. Elliot, the only written communication which appears in the record before us is a fax cover sheet written by Judge Stratton’s secretary and apparently accompanied by all existing records relating to the airport board in the fiscal court’s custody. The cover sheet did not notify Ms. Elliott that the fiscal court did not have custody of the actual letters of support, nor did it state that no other records exist which satisfy her request.


To the extent that it failed to discharge its obligations under KRS 61.880(1), the fiscal court violated the Open Records Act. This violation is mitigated by the fact that the parties engaged in regular discussions about the request, and the fact that the fiscal court ultimately issued a written response, albeit one day late and devoid of any explanation for the omission of other documents. This appeal underscores the need for a proper written response. To avoid a "war of words" in the future, we urge the Shelby County Fiscal Court to adhere to the procedural requirements of the Open Records Act codified at KRS 61.880(1).


With respect to the substantive issues in this appeal, we find that the fiscal court discharged its obligations under the Act when, on March 12, it sent Ms. Elliott all records in its custody which satisfied her request. It is well settled that a public agency cannot provide a requester with records which it does not have, or which are not in its custody. OAG 83-111; OAG 87-54; OAG 91-112; 94-ORD-65. Mr. Hays affirms that Ms. Elliott has received all existing records in the fiscal court’s custody. He further affirms that the specific records requested, namely the 21 letters of support for the airport board, are not in the fiscal court’s custody. This is confirmed by Joseph A. Kirwan who advised this office on March 31, 1997, that he did not include the letters in his February 26 letter to Judge Stratton. In the absence of evidence to the contrary, we must assume the truthfulness of these statements. It is therefore our opinion that the Shelby County Fiscal Court erred in failing to adequately respond to Ms. Elliott’s open records request, but that its conduct was, in all other respects, proper.


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.


A. B. Chandler III

Attorney General




Amye L. Bensenhaver

Assistant Attorney General




Distributed to:


Vicki Elliott

1974 Burks Branch Road

Shelbyville KY 40065


Robert Stratton

Shelby County Judge/Executive

Shelby County Courthouse

501 Main Street

Shelbyville KY 40065


James Hite Hays

Shelby County Attorney

Shelby County Courthouse

501 Main Street

Shelbyville KY 40065