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 Kentucky Parole Board's denial of Kenneth Sewell's open records request, addressed to Linda Frank, Chairperson, Kentucky Parole Board, in which he requested "any and all information and advice that Amye Bensenhaver, Asst. Attorney General, gave to you concerning Attorney General Decision 97-ORD-123 during your telephone conversation with her about this decision in August 1997."
Responding on behalf of the Parole Board, Tamela Biggs, Staff Attorney, Department of Corrections, denied Mr. Sewell's request on the basis that his request was not a request for records but a request for information.
In his letter of appeal. Mr. Sewell argues that his was not a request for information, but for a copy of Ms. Frank's telephone conversation with Ms. Bensenhaver.
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Biggs provided this office with a response to the issues raised in the letter of appeal. In her response, Ms. Biggs advised that there was no tape recording or copy of the telephone conversation requested by Mr. Sewell and reiterated that his request was one for information, rather than a request for a public record.
For the reasons which follow, we conclude that the responses of the Parole Board were proper and consistent with the Open Records Act and prior decisions of this office.
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 Parole Board, in its response to the letter of appeal, explained that there was no tape recording or record of the requested telephone conversation. Accordingly, we conclude that the response of the Parole Board 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.
Moreover, this office has repeatedly recognized that requests for information, as distinguished from records, are outside the scope of the open records provisions. See, for example, OAG 89-77. Mr. Sewell's request for "any and all information and advice" given to Ms. Frank during the telephone conversation was a request for information, rather than a request for public record. Thus, we conclude that the Parole Board's response to the request on this basis was also proper and in accord 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.