Request By:
Mr. Gerald R. Goebel, Assistant Manager
Permit Review Branch
Natural Resources and Environmental Protection Cabinet
Department for Environmental Protection
Division for Air Quality
316 St. Clair Mall
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Ms. Tracey Howell has appealed to the Attorney General, pursuant to KRS 61.880, your response to her October 1, 1991, request to inspect certain records in the possession of the Division for Air Quality. Specifically, Ms. Howell requests access to the monthly production records submitted to the Division by PCI, Inc., as a condition of its permit.
You responded to Ms. Howell's request in a letter dated October 3, 1991, advising her that the Division no longer had in its possession the documents identified in her request. You explained that the permit condition requiring submission of monthly production records to the Division was deleted, and a revised permit issued on July 29, 1991. Continuing, you noted that all production reports received by the Division were returned to PCI, Inc., when the revised permit was issued.
In her letter of appeal to this Office, Ms. Howell expresses the belief that since submission of the production reports was a condition of the permit, "those reports should have been maintained as public records, and should have been available to the public." She asks that this Office find that your response was improper, and that we require the Division "to retrieve, copy and make available the production records." In closing, Ms. Howell expresses the view that the Division should not remove public records from its files and return them to the company, since to do so violates the letter and spirit of the law.
Ms. Howell asks that we review your response to her request to determine if the Division for Air Quality acted consistently with the Open Records Act. For the reasons set forth below, we conclude that you properly responded to her request.
OPINION OF THE ATTORNEY GENERAL
This Office has consistently recognized that a public agency cannot afford a requester access to records which it does not have, or which do not exist. OAG 83-111; OAG 86-35; OAG 87-54; OAG 88-5; OAG 91-112. Your response to Ms. Howell indicated that your agency was no longer in possession of the records she wished to inspect. This was a proper response insofar as an agency cannot furnish that which it does not have.
When confronted with a request to inspect public records, an agency must address two questions: Whether it has the documents requested, and if it does, whether the documents are subject to public inspection. Under the facts presented, you advised Ms. Howell that the requested records were not available because they had been returned to PCI, Inc.
The Open Records Act regulates access to public records, and not records management. Our opinion must be limited to the question arising under KRS 61.870 to KRS 61.884. Simply stated, that question is: Does the public agency have the documents in its possession at the time of the request? OAG 83-111; OAG 87-54; OAG 88-5. Your response that the requested records are no longer in the possession of the Division for Air Quality was sufficient and proper under the Open Records Act.
KRS 61.991(2)(a) establishes a penalty for public officials who willfully conceal or destroy public records with the intent to violate the provisions of the Open Records Act. There is no proof, in the instant appeal, that the disputed documents were concealed or destroyed for this reason. Such evidence, if its exists, should be presented to the local prosecutorial authorities, who may proceed to a determination of this matter. The Attorney General is not, however, empowered to render an opinion on this question in an open records appeal.
As required by statute, a copy of this opinion will be sent to the requesting party, Ms. Tracey Howell, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(2).