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 Revenue Cabinet's actions relative to Vickie Kelley's open records requests, beginning on April 28, 1998, for copies of any correspondence from June 1994 to March 1995 to or from the Grayson County PVA office concerning the equalization increase which was imposed upon the county in 1994.
By letter dated May 1, 1998, the Cabinet responded to Ms. Kelley's request by advising that any correspondence between the Cabinet and the PVA office up to the point in time when the Cabinet took final action would be preliminary in nature and exempt under KRS 61.878(1)(j), as "preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended." The Cabinet further advised that "since the certification action occurred in the fall of 1994, we are unable to address your request for information from that point until 'March 1995' without a further explanation as to the nature of your request."
After a telephone conversation, the parties determined that Ms. Kelley was seeking a letter reflecting the Revenue Cabinet's intention concerning the implementation of an equalization on residential real property tax assessments in Grayson County for 1994. On April 15, Ms. Kelley was provided with copies of a letter to the Grayson County Judge/Executive from the Commissioner of the Cabinet, dated September 30, 1994, and a letter and attachment from the Deputy Commissioner dated October 24, 1994.
On May 19, 1998, Ms. Kelley again requested a copy of a letter reflecting the Cabinet's intention relative to the equalization increase in Grayson County in 1994. By letter dated May 26, 1998, the Cabinet responded that it had reviewed the file in question and found no document in the file which met her request. The Cabinet advised that since the record did not exist, it could not provide the document.
The issue before us in this appeal is whether the Cabinet's response was consistent with the Open Records Act. For the reason which follows, we conclude it was.
This office has consistently recognized that a public agency cannot provide a requester access to a record or document which it does not have or which does not exist. 98-ORD-35; 96-ORD-190; 96-ORD-163. The Cabinet, in its May 26, 1998 response, explained that it had searched its files and found no document responsive to Ms. Kelley's request.
Accordingly, we conclude that the response of the Cabinet that it could not provide the requested record because the record did not exist was consistent with the Open Records Act and prior decisions of this office.
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.