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 Franklin County Planning, Zoning & Building Codes Enforcement's (Planning and Zoning) response to the August 18, 1999 open records request of James L. Flynn for:
All the names of the people who complained and expressed complaints, about my property & business, Flynn Engine Repair, 350 Smoot Lane, Frankfort, Ky.
On August 21, 1999, Teresa A. Barton, Franklin County Judge/Executive, on behalf of Planning and Zoning, responded to Mr. Flynn's request by providing him with copies of two letters, dated May 6, 1999 and August 17, 1999, respectively, addressed to Mr. Flynn from Vickie A. Sewell, Director, Franklin County Planning, Zoning & Building Codes Enforcement. In the response, Mr. Flynn was advised that the letters represent all the information on file regarding his open records request.
In the May 6, 1999 letter, Ms. Sewell advised Mr. Flynn that her office had received complaints regarding abandoned, inoperable vehicles, campers, and trailers stored at his office on Smoot Lane. She further advised that his property was zoned rural residential and storing such vehicles was not permitted in that zoned district and notified him that failure to remove the vehicles from his property would result in her office filing a Criminal Complaint against him with the Franklin County Attorney.
The August 17, 1999 follow up letter advised Mr. Flynn that a recent inspection of his property found that he had not taken the steps to clean up his property and bring it into compliance with the Franklin County zoning ordinance. Ms. Sewell stated that the letter serve as Final Notice that her office would file a Criminal Complaint against him if he had not brought his property into compliance by August 31, 1999.
Mr. Flynn appeals the denial of his request for the names of the persons that had called the agency or filed complaints about his property.
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Jim Boyd, Franklin County Attorney, provided this office with a response to the issues raised in the appeal. In his response, Mr. Boyd stated:
There are no written records of complaints made against Mr. Flynn and/or his business located on Smoot Lane in Franklin County. All complaints have been made by anonymous telephone calls concerning Mr. Flynn's property.
No one, including his neighbors, has left their names with the Planning & Zoning Office or the County Judge/Executive's Office.
At issue in this appeal is whether the response of the Planning & Zoning Office was consistent with the requirement of the Open Records Act. For the reasons that follow, we conclude that because Mr. Flynn's request was for information, rather than for reasonably described documents, the agency's response was not a violation of the Act.
This office has consistently recognized that a request for information, as opposed to a request for specific documents, need not be honored under the Open Records Act. OAG 90-100. There we held that to the extent that the request asked questions, it was a request for information as distinguished from a request to inspect reasonably identified documents. In the instant case, Mr. Flynn asked for the names of all persons that had complained to the agency about his property. He did not request to inspect particular agency records, which might contain the information which he was seeking.
However, the response submitted by Mr. Boyd indicated that there were no written records of complaints made against Mr. Flynn or his property as all complaints had been made by anonymous telephone calls. Regarding this point, this office has long recognized that a public agency cannot furnish access to records which do not exist. 99-ORD-55. Thus, if written records of the complaints do not exist, the agency cannot be said to have violated the Open Records Act in denying Mr. Flynn's request.
We do note, however, that notations, if any, made of the telephone calls which set forth the essence of the verbal complaint or identify the complainants would be public records and subject to disclosure, unless otherwise exempt under one or more of the exceptions set out in KRS 61.878(1). 99-ORD-105; 94-ORD-20.
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.