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 actions of the Bullitt County Planning Commission in relation to the open records requests of Eugene McGruder for certain of the agency's records.
In his letter of appeal to this office, Mr. McGruder indicated that he had made repeated requests to the Commission for this information and had yet to receive a response.
After receipt of the letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal" and a copy of Mr. McGruder's letter to the Commission. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Daryl Lee, Administrative Official, on behalf of the Commission, provided this office with a response to the issues raised in the appeal. Mr. Lee's response, with attachments, indicates that the Commission had timely attempted to respond to each of Mr. McGruder's requests by advising him that the Commission did not have the records he requested. However, it was unable to do so because Mr. McGruder had given the agency an invalid fax number and had left no mailing address or telephone number where he could be reached. Attachments provided with Mr. Lee's response support this explanation.
For the reasons that follow, it is the decision of this office that the actions of the Commission were in substantial compliance with the Open Records Act.
KRS 61.880(1) requires that a public agency respond, in writing, to an open records request within three business days after its receipt. Evidence submitted by the Commission shows it attempted to timely fax a response to Mr. McGruder on each of his requests. However, its attempts were unsuccessful as the fax number provided by Mr. McGruder proved to be an invalid one and resulted in the receipt of an error report from the fax machine. As noted above, Mr. McGruder had left no mailing address or telephone number where he could be reached.
Under these circumstances, we conclude the Commission's failure to timely respond within three days is mitigated by the failure of Mr. McGruder to provide a correct fax number, address, or telephone number to which it could timely respond, and find no procedural violation of the Open Records Act.
As to the substantive issue, the Commission stated, in its response to this office, that Mr. McGruder's letter of appeal contained his correct fax number. Upon finding this number, the Commission faxed a response to Mr. McGruder advising that it did not have the records he requested.
This office has consistently recognized that a public agency cannot furnish access to records which it does not have or which do not exist. 96-ORD-163; 94-ORD-65. Accordingly, as to the substantive issue, we conclude that the response of the Commission was not a violation 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.