Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Personnel Cabinet's actions relative to Pamela E. Sapp's open records request. By letter dated January 22, 1998, Ms. Sapp requested copies of "phone logs of phone calls made to or received from the Kentucky Commission on Human Rights since 11/01/97."
In her letter of appeal, dated February 1, 1998, Ms. Sapp stated that, as of that date, she had yet to receive a response from the Personnel Cabinet.
After receipt of the letter of appeal, we sent "Notification of Receipt of Open Records Appeal" to the Personnel Cabinet and enclosed a copy of Ms. Sapp's letter. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Daniel F. Egbers, General Counsel and Custodian of Records, Personnel Cabinet, provided this office with a response to the issues raised in the appeal. In the response, Mr. Egbers stated, in relevant part:
This request was stamped "received" by the Personnel Cabinet, Office of the Secretary on January 23, 1998. I noted on the request that: "No such record exists." And signed it the same date. My secretary faxed this response to Ms. Sapp the same day. A copy of the document that was faxed to Ms. Sapp is enclosed. Therefore, the Personnel Cabinet has complied with its responsibilities under the Open Records Act.
At issue in this appeal is whether the actions of the Personnel Cabinet were consistent with the requirements of the Open Records Act. For the reasons which follow, we conclude that they were. In her letter of appeal, Ms. Sapp stated she received no response to her open records request. Mr. Egbers, in his response to Ms. Sapp's letter of appeal, countered that the Cabinet timely responded in writing to Ms. Sapp's request, as required by the Open Records Act.
The copy of Ms. Sapp's request upon which Mr. Egbers noted "No such Record exists;" and which indicates he signed, dated, and faxed to her on January 23, 1998, was provided this office and tends to support the Cabinet's position. However, because of the result reached in the substantive portion of the appeal, it is unnecessary to render a decision on this procedural issue.
Turning to the substantive issue, this office has long recognized that a public agency cannot afford a requester access to a record which it does not have or which does not exist. 97-ORD-103; OAG 83-111. Accordingly, we find the Department's response that it could not provide a copy of the requested record on the ground that no such written record exists, was proper and consistent with provisions of the Open Records Act.
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.