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 Kentucky Department for Libraries and Archives violated the Open Records Act in its handling of Theresa A. Hahn's May 17, 1999, request for a "copy of any correspondence that you have received or sent to the University [of Louisville] (pursuant to KRS 61.870-878), since sending them your letter of April 14, 1999." Ms. Hahn's request went unanswered, prompting her to initiate this appeal.
Upon receipt of this office's notification of appeal, Richard N. Belding, Director of the Public Records Division of the Department for Libraries and Archives, responded to Ms. Hahn's complaint. He explained:
On April 14, 1999, the department sent a letter to Dr. William Morison concerning Ms. Hahn's earlier Open Records inquiry. In that letter, a copy of which was sent to Ms. Hahn at that time, we made observations about the circumstances surrounding the previous Open Records request and recommended certain actions which the University might take to ensure that systematic records management procedures were followed in the future. We also offered to meet with University staff and offer training in this area, to reinforce the understanding of staff, if that was desired.
Since that date, the department has received no communication from the University of Louisville nor have we sent any further communications. It is our assumption that the University felt it was able to address outstanding issues in this area through its own means and to correct any deficiencies in practice which might exist. We remain available to provide any appropriate assistance in this area, should the University desire it.
In closing, Mr. Belding expressed his regret for any misunderstanding his actions may have caused Ms. Hahn. Having reviewed this response, along with Ms. Hahn's letter of appeal, we conclude that although the Department violated the procedural requirements of the Open Records Act in failing to respond to Ms. Hahn's request, and advise her that no record exists which satisfies her request, it cannot otherwise be said to have violated the Act insofar as it cannot produce a record that does not exist.
The failure of the Department for Libraries and Archives to respond to Ms. Hahn's May 17 request in a proper and timely fashion constituted a violation of KRS 61.880(1). That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In his letter to this office, Mr. Belding explained that the Department did not respond to Ms. Hahn's request because it had received no correspondence from the University of Louisville.
The Attorney General has consistently recognized that a public agency must advise the requesting party whether the documents requested exist. OAG 86-38; OAG 90-26; OAG 90-26; OAG 90-69; OAG 91-101. In OAG 86-38, at page 3, we construed the obligation of the agency relative to a request to inspect documents, noting "KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested. " Echoing this view, in OAG 90-26, at page 4, we categorically stated, "If a record of which inspection is sought does not exist, the agency should specifically so indicate."
The Kentucky Court of Appeals confirmed this position in
Edmondson v. Alig., Ky.App., 926 S.W.2d 856, 857 (1996), holding:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
To discharge its duties under the cited authorities, the Department was required to notify Ms. Hahn in writing, and within three business days, that because it had received no correspondence from the University of Louisville since its April 14, 1999, letter, no record existed that was responsive to her request.
The Department cannot, of course, provide access to a record that does not exist. Although there may be occasions when, under the mandate of KRS 61.8715, 1 the Attorney General requests that the agency substantiate its denial based on the nonexistence of records by demonstrating that efforts were made to locate records or explain why no records were generated, we do not believe that this appeal warrants additional inquiries. The University of Louisville has apparently elected to deal with its records management problems internally, and not to apprise the Department of its actions in writing or otherwise. The Department cannot produce that which it does not have.
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.
Footnotes
Footnotes
1 KRS 61.8715 recognizes "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ."