Request By:
J. Patrick Abell, Esq.
General Counsel
Office of the Governor
State Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
In a letter to the Attorney General, dated May 5, 1986, Robert S. Miller, Esq., referred to your letter to him dated April 28, 1986, and stated that you did not comply with the Open Records Law as the public agencies involved here (the Governor's Office and the Commerce Cabinet) have withheld critical and obviously available documents. Mr. Miller then states that his letter of May 5, 1986, constitutes a complaint pursuant to KRS 61.880(4). That statute deals with a situation where a person feels the intent of the Open Records Law is being subverted by an agency short of denial of inspection.
In letters dated April 25, 1986, to the Governor and to the Secretary of the Commerce Cabinet, Mr. Miller requested to inspect a variety of documents relative to the proposed plant of the Toyota Motor Corporation in Scott County and a proposed sewage treatment plant to be constructed in Scott County in conjunction with the Toyota plant. You sent Mr. Miller a letter, dated April 28, 1986, which you said was in response to his letters to the Governor and the Secretary of the Commerce Cabinet. You said you were enclosing copies of the various public records requested by Mr. Miller.
In a letter to you, dated May 12, 1986, from Theodore E. Cowen, Esq., presumably an associate of Mr. Miller, Mr. Cowen mentioned that he had that day reviewed various documents of the Commerce Cabinet involving Toyota and its proposed Scott County facility which you had made available for inspection. He evidently did not find what he was looking for or what he thought existed relative to the Offutts (Mr. Miller's clients) as he wrote in part as follows:
". . . The records do not reflect any discussion of or correspondence concerning the Offutt's complaints about the proposed waste water discharge from the Toyota plant. Nor do the records reflect any discussion of the financial implications of an alternative placement of the Toyota waste water treatment plant . . . "
Mr. Cowen in his letter to you dated May 15, 1986, mentioned that he had that date reviewed records of the Governor's Office concerning the request to inspect public records. Mr. Cowen then set forth those particular records he had reviewed. He stated what you purportedly told him verbally that day; that the Governor's Office has no relevant files other than those in Room 110 and that all of the Governor's files pertaining to Toyota have been provided with the possible exception of files kept by governmental employees with specific responsibilities. The name of Bruce Williams was mentioned as a person who might have such material.
The final item of correspondence pertaining to this matter with which this office has been furnished is a letter addressed to the Attorney General, dated May 16, 1986, and signed by Mr. Cowen. That letter asks this office to "investigate several matters on our behalf."
Mr. Cowen referred to his inspection of the records of the Commerce Cabinet on May 12, 1986. He mentions several items which he did not find in those records and mentioned that he had been told that several items he was interested in did not exist. He then asked this office to investigate the validity of the statements as to the nonexistence of the items in question.
Mr. Cowen then discussed his review of the files of the Governor's Office on May 15, 1986. He said he was told that the Governor has no pertinent files other than those located in Room 110 except that certain staff members might have relevant files. This office was then asked to investigate the allegations that the only relevant documents of the Governor's Office are located in Room 110 and the appropriateness of not making available pertinent files of staff members of the Governor's Office.
Mr. Cowen further states that on May 15, 1986, he reviewed an additional file from the Commerce Cabinet (Mr. Ted Sauer's file pertaining to the Toyota project) and he said there were no entries or documents in that file after mid-February of 1986. He asked that this office investigate the completeness of the documents provided by the Commerce Cabinet.
The undersigned Assistant Attorney General talked briefly with you in your office on May 16, 1986, and again on May 28, 1986. You advised that to the best of your knowledge no documents were withheld from the inspection of Mr. Cowen on either May 12, or May 15, 1986. Mr. Bruce Williams of the Governor's Office is the Governor's liason to the Natural Resources and Environmental Protection Cabinet and the only relevant document in his possession is a copy of the letter, with attachments, which Mr. Miller's clients, the Offutts, had sent to the Governor.
OPINION OF THE ATTORNEY GENERAL
Mr. Miller alleges in part that you have not complied with the provisions of the Open Records Act and that available documents have been withheld from public inspection. He maintains that the appeal to this office on behalf of his clients is based upon KRS 61.880(4). That statutory provision, however, pertains to a situation where a person feels that the intent of the Open Records Act is being subverted short of denial of inspection by such acts as the imposition of excessive fees and the misdirection of the request. After examining the documents which have been made available and having been advised by you relative to the public agency's handling of the inspection requests, I cannot see how KRS 61.880(4) applies to this particular matter.
Mr. Miller's associate, Mr. Cowen, has asked this office, within the context of an Open Records appeal, to investigate the validity of statements as to the nonexistence of various items he was seeking. Furthermore, he has asked this office to investigate the statements that all relevant documents are located in one particular room. As far as the undersigned is concerned you have satisfactorily replied to his question about the possession of documents by Governor's Office staff member Bruce Williams.
This office has certain specific duties relative to the appeal of a denial of a request to inspect records. KRS 61.880(2) states in part that when requested by the party seeking inspection, the Attorney General shall review the denial and issue a written opinion to the public agency concerned, stating whether that agency acted properly under the Open Records Act. There is no provision in the Open Records Act giving this office general investigatory powers. We are neither required nor even authorized to conduct investigations of public agencies to attempt to locate documents which the requesting party maintains exist but which the public agency states do not exist. This office is a reviewer of the course of action taken by the public agency and not a finder of documents or possible documents for the party seeking to inspect such documents.
This particular "appeal" does not really involve a review of a denial because you, as the public agency's representative, have stated that the public agencies involved here (the Governor's Office and the Commerce Cabinet) have not withheld from inspection any public documents. Mr. Miller and Mr. Cowen have alluded to the existence of various documents but if the public agency does not have that which is requested, then the request to inspect such an item is moot. See OAG 83-111, copy enclosed, at page two.
It is, therefore, the opinion of the Attorney General that this office does not have the duty or the authority to perform the type of investigation requested by the appealing party in connection with an appeal under the Open Records Act. Furthermore, on the basis of the letters and correspondence available to this office, as well as the assertions made by the public agency's representative, the truthfulness of which there is no reason to doubt, there has been no denial of a request to inspect public records and any items which have been referred to and not furnished apparently do not exist.
As required by statute, a copy of this opinion is being sent to the requesting party, Robert S. Miller, Esq., who has the right to challenge it in circuit court pursuant to KRS 61.880(5).