NOT TO BE PUBLISHED

95-ORD-72

May 10, 1995

In re: Warren Caldwell/Christian County Sheriff's Department

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the Christian County Sheriff's Department's response to Mr. Warren Caldwell's request to inspect any and all records pertaining to Indictment No. 19375.

Captain Billy Gloyd, on behalf of the Christian County Sheriff's Department, in response to Mr. Caldwell's request, stated:

Our office has record of this case. You might check at the Circuit Clerk's Office to see if they have the information you need. It is a 1977 case and most of our files don't go back that far.

In this appeal, Mr. Caldwell asks this office to determine if the Christian County Sheriff's Department violated the Open Records Act by refusing to allow him to inspect records in the Department's possession.

Subsequent to receipt of Mr. Caldwell's letter of appeal, dated February 13, 1995, this office received a copy of a letter from Captain Gloyd to Mr. Caldwell, dated February 16, 1995, concerning the open records request. In that letter, Mr. Gloyd apologized for a typographical error in the Department's open records response. He explained that his original response letter incorrectly stated, "Our office has record in this case," when in fact it should have read, "Our office has no record in this case." (Emphasis added.) He again suggested that Mr. Caldwell might check at the Circuit Clerk's Office to see if they might have the records he was seeking.

It is the decision of this office that the Department did not violate the Open Records Act. This office has long recognized that a public agency cannot furnish records which it does not have. 94-ORD-41.

Mr. Caldwell also raises issue that the Department did not comply with the procedural requirements of the Open Records Act. He states that the Department did not respond to his request within three working days of receipt of the request.

From the facts supplied, we are unable to determine the exact number of days that transpired between the Department's receipt of the request and its response. To the extent that the response was beyond three working days, it was technically deficient. The Open Records Act requires that a public agency notify in writing the person making the request, within three working days, its answer to the request. KRS 61.880(1).

However, on the substantive issue of this appeal, as noted above, the Department's response was not in violation of the Open Records Act.

Mr. Caldwell may challenge this decision 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 proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

JAMES M. RINGO

ASSISTANT ATTORNEY GENERAL

res/190

Distributed to:

Captain Bill Gloyd

Christian County Sheriff's Department

501 South Main Street

Hopkinsville, KY 42240

Mr. Warren Caldwell #27692

Western Kentucky Correctional Complex

D-1-52

P.O. Box 5000

Eddyville, KY 42038-5000