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 Community and Technical College System violated the Open Records Act in denying Pamela E. Sapp's September 1, 1999, request for access to "all minutes of meetings of technical college directors and/or presidents since the inception of KCTCS" on the basis that no such records exist. For the reasons that follow, we conclude that KCTCS's response was sufficient and proper under the Act.
In her September 7, 1999, response to Ms. Sapp's request, KCTCS records custodian Sandra Gubser explained to Ms. Sapp that "no minutes of presidents and directors meetings are recorded." On behalf of KCTCS, Ms. Gubser advanced the argument that employees of the agency are not considered members of the agency within the scope of KRS 61.805(4), and that, therefore, meetings of employees are not governed by the Open Meetings Act, and in particular KRS 61.835, requiring public agencies to record minutes of action taken at every public meeting conducted by the agencies. This appeal followed.
In a supplemental response directed to this office, KCTCS's legal counsel, James M. Baker, elaborated on the agency's position. He observed:
It has been long held that under the Kentucky Open Records Act, a public agency cannot furnish access to documents it does not have or that do not exist. Ky. Ap. Atty. Gen. 94-ORD-108, 1994 WL 542032 (Ky. A.G.). KCTCS does not have minutes of Presidents and Directors meetings. These meetings are staff meetings, not meetings of a public agency as defined by KRS 61.805(2), the Open Meetings Act; therefore, KRS 61.835 requiring minutes does not apply.
Mr. Baker confirmed KCTCS's view that because KRS 61.805(4) excludes employees from the definition of "members" of a public agency, staff and administrative meetings of that agency are not subject to the requirements of the Open Meetings Act. We affirm KCTCS's denial of Ms. Sapp's request for nonexistent records, and leave for another day resolution of the issue whether staff and administrative meetings of KCTCS are public meetings for purposes of the Open Meetings Act, that issue having not been presented to us in a perfected open meetings appeal.
The Attorney General has consistently recognized that a public agency must advise the requesting party whether the documents identified in his or her request exist. OAG 86-38; OAG 90-26; OAG 90-69; OAG 91-101; 96-ORD-151; 99-ORD-108. At page 3 of OAG 86-38, 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, at page 4 of OAG 90-26, we catagorically stated, "If a record of which inspection is sought does not exist, the agency should specifically so indicate."
To discharge its duties under the cited authorities, KCTCS was required to notify Ms. Sapp in writing, and within three business days, that there are no minutes of meetings of technical college presidents and directors in existence. Although its response was one day late, KCTCS complied in all other material respects with the requirements of the law in denying Ms. Sapp's request. KCTCS cannot, of course, provide access to records that do not exist. Although there may be occasions when, under the mandate of KRS 61.8715, the Attorney General requests that an agency substantiate its denial based on the nonexistence of records by demonstrating what efforts were made to locate them, we do not believe that this appeal warrants additional inquiries. KCTCS takes the position that meetings of technical college presidents, directors, and their staffs are not public meetings for purposes of the Open Meetings Act, and that these meetings are not subject to the requirements of KRS 61.835. KCTCS cannot produce that which it does not have.
Whether KCTCS's position relative to meetings and discussions of college presidents, directors, and staff is legally sound is not properly before us. Simply put, an open records appeal is not the appropriate forum for resolution of the issue whether these gatherings constitute public meetings, and the persons attending them constitute public agencies, for purposes of the Open Meetings Act. See, e.g. , 94-ORD-15 (declining to reach the issue whether the University of Kentucky College of Agriculture Council is a public agency within the contemplation of KRS 61.805(a) in an open records appeal). Here, as in 94-ORD-15, we decline to render a decision on the issue inasmuch as Ms. Sapp has not presented it to us in an open meetings appeal conforming to the requirements of KRS 61.846(1) and (2).
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.