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 is before the Attorney General on appeal from the actions of the Oldham County Coroner relative to James M. Perry's March 9, 1998 open records request for a "copy of coroner's Report on the cause of death of one Billy or William Huff, no. 070606. May or may not have died at K.S.R. on or about 10/10/97 and cost of Report."
In his letter of appeal, dated March 23, 1998, Mr. Perry stated that, as of that date, he had yet to receive a response to his request from the Oldham County Coroner.
After receipt of the letter of appeal, we sent "Notification of Receipt of Open Records Appeal" to the Oldham County Coroner. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Brent E. Donner, Oldham County Coroner, notified the undersigned by telephone that no coroner's report on Billy or William Huff existed, as requested by Mr. Perry, as Mr. Huff was still alive and residing at the Kentucky State Reformatory. A copy of the Coroner's response to Mr. Perry reflecting this information was faxed to this office.
We are asked to determine whether the actions of the Coroner were consistent with the Open Records Act. For the reasons that follow, we conclude that, although the Coroner's response was procedurally deficient, its substantive response was consistent with the Act.
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 agency action.
In general, a public agency cannot postpone or delay this statutory deadline. The burden on the agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. 93-ORD-134.
However, if the delay is to be in excess of three working days after an open records request has been made, the agency is required to immediately notify the requester and provide a detailed explanation of the cause for further delay and give a place, time and earliest date on which the public record will be available for inspection. KRS 61.872(5).
In the instant case, the Coroner failed to notify Mr. Perry that there would be a delay in responding to his request and failed to provide a detailed explanation of the cause of the delay and a time and the earliest date on which the record, if any, would be available for inspection. This portion of the Coroner's response was procedurally deficient and inconsistent with the requirements of KRS 61.880 (1) and KRS 61.872(5).
Turning to the substantive issue in this appeal, this office has consistently recognized that a public agency cannot provide a requester access to a record it does not have or which does not exist. 98-ORD-35; 96-ORD-190. In his response, Mr. Donner explained no coroner's report on Billy or William Huff existed, as Mr. Huff was still alive and residing in the Kentucky State Reformatory. Accordingly, we conclude that the Coroner's response explaining that the requested record did not exist was consistent with 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.