Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Mr. Joseph H. Cohen to the Commissioner of the Department of Vehicle Regulation, Norris E. Beckley, on February 16, 1994. Mr. Cohen requested a copy of Regular Route Certificate No. R-1170 (Certificate of Convenience and Necessity) on behalf of his client, Southern Kentucky Bus Lines, Inc. In a letter dated February 28, but received in this Office on March 8, Mr. Cohen appealed to the Attorney General pursuant to KRS 61.880(2), advising us that he had received no response whatsoever from the Department.
On March 9, 1994, the undersigned Assistant Attorney General contacted Commissioner Beckley to ascertain the status of this request. We were advised that a response to Mr. Cohen's request was issued on March 7, 1994, by Ms. Kim Garvin, Principal Assistant to the Custodian of Records for the Transportation Cabinet. Ms. Garvin informed Mr. Cohen that the "Certificate of Convenience and Necessity" which he requested was cancelled at the company's request in 1986. She explained that the Cabinet's Records Retention Schedule specifies that this information must be destroyed within two years of cancellation. Accordingly, the Cabinet was unable to produce a record which satisfied Mr. Cohen's request.
We are asked to determine if the Department of Vehicle Regulation of the Transportation Cabinet violated the Open Records Act in responding to Mr. Cohen's request. For the reasons set forth below, we conclude that although its response was procedurally deficient, the Department properly responded to Mr. Cohen's request.
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 action.
The Department's response was deficient to the extent that it was not issued within three business days of receipt. Some sixteen business days elapsed between the date of Mr. Cohen's initial request, and the date of Ms. Garvin's response. We urge the Department to review the cited provision to insure that future responses conform to the Open Records Act.
Turning to the substantive issue in this appeal, we find that the Department properly advised Mr. Cohen that the requested record had been destroyed, and therefore could not be provided to him. This office has long recognized that a public agency cannot furnish access to documents which it does not have, or which no longer exist. OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203; OAG 92-85. We have also recognized that it is not our duty to investigate in order to locate documents for the requester. As we observed at page 5 of OAG 86-35, "This Office is a reviewer of the course of action taken by a public agency and not a finder of documents or possible documents for the party seeking to inspect such documents." It is the opinion of this Office that the Department of Vehicle Regulation's response was substantively correct.
Mr. Cohen and the Department for Vehicle Regulation may challenge this decision by initiating action in the appropriate circuit court. 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.