Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Elkhorn City violated the Open Records Act in partially denying Roger Copley's September 28, 1998, request to review and copy the city's audit reports for 1994, 1995, 1996, and 1997. For the reasons that follow, we find that the city properly denied Mr. Copley's request for the 1995 and 1996 audits on the basis that these records have not yet been generated, but that it violated the Act in failing to offer any explanation for its inability to produce the 1997 audit.
In his letter of appeal to this office, Mr. Copley acknowledges that he received the city's 1993 and 1994 audits, but questions why the 1995, 1996, and 1997 audits were not disclosed to him. In a response to this office dated October 9, 1998, city clerk Jayneen Rosser explained that the city could not release the 1995 and 1996 audits to him because they "are being completed at this time and the City of Elkhorn City does not have a copy." Ms. Rosser agreed to arrange for Mr. Copley to inspect and copy the 1995 and 1996 audits when they are completed. She offered no explanation for the city's failure to furnish him with a copy of the 1997 audit. While this response raises non-open records related questions relative to compliance with KRS 91A.040(1), we affirm the city's partial denial of his request for records which have not been completed and therefore are not in its custody. We direct the city to release its 1997 audit, or explain why it cannot do so.
KRS 91A.040(1) mandates that each city of the first through fifth class must conduct an audit at the close of each fiscal year, and that that audit "shall be completed by February 1 immediately following the fiscal year being audited." Elkhorn City is a fourth class city, and is therefore subject to this provision. Given the fact that its statement that it has not completed its 1995 and 1996 audits is an admission of noncompliance, we have no reason to doubt this statement.
While the Attorney General has consistently held that final audit reports are public documents and are therefore subject to public inspection (see, for example, OAG 76-633, OAG 82-340, OAG 84-225, OAG 91-72, 93-ORD-125), this office has just as consistently held that "a public agency cannot afford a requester access to a document which does not exist or which it does not have in its possession or custody. " 93-ORD-51, p. 4. In general, it is not our duty to investigate in order to locate documents which the requesting party maintains exist, but which the public agency states do not exist. The Kentucky Open Records Act was amended in 1994, and now recognizes "an essential relationship between the intent of [the Act] and that of KRS 171.740, dealing with the management of public records. . . ." KRS 61.8715. Although there may be occasion when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants additional inquiries. The city acknowledges that the 1995 and 1996 audits have not yet been completed and are not in its custody. The issue of its noncompliance with KRS 91A.040(1) cannot be resolved under the Open Records Act. The city's response to Mr. Copley's request was consistent with the provisions of the Act insofar as it cannot make available for inspection documents which it does not have in its possession.
The city did, however, err in failing to release its 1997 audit to Mr. Copley, or to advise him that that audit has not been completed. If the 1997 audit has been completed, it is a public record and must be made available for inspection. Alternatively, "if the record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 6. Consistent with these principles, the city is directed to respond to this portion of Mr. Copley's request without delay.
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.