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 Ohio County Water District's actions relative to the November 30, 1998 open records request of John Phelps to inspect and copy a "Memorandum of Understanding" between Perdue Farms and the Ohio County Water District as well as any and all contracts or Memorandums of Understanding between the Ohio County Water District and Perdue Farms Incorporated or Perdue Processing Plant or Perdue Water Plant or Ohio County Industrial Authority or Ohio County Industrial Foundation.
By letters dated December 1, 1998 and December 8, 1998, James C. Porter, General Superintendent of the Water District, advised Mr. Phelps that the agency did not have a "Memorandum of Understanding" with Perdue and the other requested documents did not exist.
After receipt of the letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, E. F. Martin, Jr., attorney for the Water District, provided this office with a response to the issues raised in Mr. Phelps's letter. In his response, Mr. Martin stated:
By correspondence dated December 1, 1998, and subsequent meetings with Mr. James C. Porter, Ohio County Water District General Superintendent, Mr. Phelps was advised that the documents which he requested did not exist or were not part of any records of the Ohio County Water District.
Mr. Phelps was provided with a copy of the "Assignment of Contract Rights," which was an assignment entered into by the Ohio County Fiscal Court and the Ohio County Water District, whereby the Ohio County Water District was formally assigned all rights for up to 1,000,000 gallons of free water per day which had been made available by Perdue Farms Incorporated in an agreement with the Ohio County Fiscal Court, the Ohio County Industrial Foundation, and the Ohio County Industrial Authority. This "Agreement" between those parties (but not involving the Ohio County Water District) was dated August 25, 1994, and an "Amendment To Agreement" between the Ohio County Fiscal Court, Perdue, and the other mentioned parties had been entered into under date of July 13, 1995.
A copy of this "Assignment Of Contract Rights" together with Resolution 98-3, approved by the Ohio County Water District Board of Commissioners authorizing the District to enter into the "Assignment of Contract Rights" is attached to this correspondence.
The executed "Agreement," dated August 25, 1994, as well as the "Amendment to the Agreement," dated July 13, 1995 are part of the public records of the Ohio County Fiscal Court and the other public agencies which were parties to the "Agreement" and the "Amendment."
The Water District does not have either the August 25, 1994 "Agreement" or the July 13, 1995 "Amendment" as part of any of its records, as Mr. Phelps was well advised.
The issue in this appeal is whether the actions of the Water District were consistent with the Open Records Act. For the reasons that follow, we conclude that that the responses of the Water District were consistent with and in accord with requirements of the Open Records Act.
This office has consistently recognized that a public agency cannot afford a requester access to records which it does not have or which do not exist. 93-ORD-134. The Water District fully discharged its obligations under the Open Records Act by advising Mr. Phelps either that the requested records did not exist or that it did not have other records he sought which did exist.
KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records
As required by KRS 61.872(4), the Water District informed Mr. Phelps that it did not have requested records, such as the executed "Agreement," dated August 25, 1994, as well as the "Amendment to the Agreement," dated July 13, 1995, and notified him that these records were part of the public records of the Ohio County Fiscal Court and the other public agencies which were parties to the "Agreement" and the "Amendment." Thus, we conclude that the Water District's responses were proper and 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.