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 response of the Office of Education Accountability (OEA), Kentucky Department of Education, to the open records request of Barry Johns for a copy of a complaint sent to Dr. Kevin Henry, Director, OEA, by Reo Johns concerning Pike County Board of Education member W. Keith Hall.
In his letter of appeal, Mr. Johns asserts that there was no such complaint sent by Reo Johns to Dr. Henry or his agency and if such complaint existed it was a forgery.
After receipt of Mr. Johns's letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ava Crow, OEA Counsel provided this office with a response to the issues raised in the appeal. In her response, Ms. Crow advised this office there was no complaint responsive to Mr. Johns' request. She explained that, in a meeting with Barry and Reo Johns, Mr. Henry had stated that such a complaint had been filed by Reo Johns. However, after a review of OEA's entire file on the matter, it was determined that this was in error. The agency had received an anonymous complaint about Mr. Hall, but had not received one from Reo Johns. Thus, the OEA advised Mr. Johns that the document he requested did not exist.
We are asked to determine whether the response of the OEA was consistent with the Open Records Act. For the reason that follows, we conclude that it was.
This office has long recognized that a public agency cannot furnish access to records which do not exist. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17. Thus, we find that, because the requested record does not exist, the OEA cannot be said to have violated the Open Records Act in denying Mr. Johns's request.
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.