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 Transportation Cabinet violated the Open Records Act in its disposition of Gerald T. Kemper's May 3, 2000, request for "information concerning DOT Vehicle Enforcement." For the reasons that follow, we find that the Cabinet's denial of Mr. Kemper's request, although not issued in a timely fashion, was otherwise consistent with the provisions of the Act.
On May 3, Mr. Kemper requested copies of:
For the months of February, March and April, 2000 the identify [sic] by vehicle number and name of officers and dates, which units were assigned to enforcement details in Owen County, Kentucky.
Having received no response to his request, on May 13, Mr. Kemper initiated this appeal. His letter of appeal apparently crossed the Cabinet's response in the mail. In its response, dated May 11, 2000, the Cabinet advised Mr. Kemper that the Division of Motor Vehicle Enforcement does not maintain "any specific details for Owen County during the months of February, March, and April of 2000."
In a supplemental response directed to this office after Mr. Kemper initiated his appeal, Assistant General Counsel for the Cabinet, Todd Shipp, observed:
The Division of Motor Vehicle Enforcement makes no set assignment by County in any part of the state. Any of the officers assigned to the regional post in Boone County are subject to work in Owen County or any of the counties in that region on any given day. But at no time does MVE make specific assignments of an officer to one particular county on a monthly basis.
Mr. Shipp maintained that because the requested record does not exist, the Cabinet discharged its duties under the Open Records Act by so advising Mr. Kemper. It was the Cabinet's position that it is not obligated to create a record in order to satisfy an open records request. In rebuttal, Mr. Kemper asserts that the Division of Motor Vehicle Enforcement "is highly regimented and highly documented with its operation[, and] a claim . . . that statistical information concerning the location of personnel and units [does not exist] is deceiving and untrue." He argues that "the information sought is available and must be produced." While we agree with the Cabinet that it cannot produce a record that it does not maintain, and is not obligated to generate a record upon request, we are obliged to note that its response was not issued in a timely fashion. KRS 61.880(1) requires a public agency to respond to an open records request in writing, and within three business days of receipt. Mr. Kemper's request was apparently mailed on May 3, and the Cabinet's response issued on May 11. Allowing for a two day delay in the mail, the Cabinet's response was nevertheless untimely. We remind the Cabinet that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5.
Turning to the substantive issue in this appeal, we find that the Cabinet otherwise discharged its duties under the Act by advising Mr. Kemper that the specific information identified in his request is not maintained by the Division of Motor Vehicle Enforcement. This office has long recognized that a public agency cannot furnish access to records which do not exist or cannot be located. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17. We have also recognized that it is not our duty to investigate in order to locate documents which do not exist. OAG 86-35. Thus, at page 5 of OAG 86-35 we observed, "This office is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the party seeking to inspect such documents."
In 1994 the Open Records Act was amended. The Act now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740, dealing with the management of public records, and KRS 61.940 to 61.957, dealing with the coordination of strategic planning for computerized information systems]." KRS 61.8715. The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id.
Since these amendments took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based on the nonexistence of the requested records. In order to satisfy its statutory burden of proof, an agency must, at a minimum, offer some explanation for the nonexistence of the records. See, for example, 94-ORD-140 (records of investigation not in sheriff's custody because sheriff did not conduct investigation); 97-ORD-17 (evaluations not in university's custody because written evaluations were not required by university's regulations). The Transportation Cabinet explained to Mr. Kemper that no single document maintained by Motor Vehicle Enforcement contains all of the information he seeks, and thus satisfied its statutory burden of proof.
Nevertheless, this office has independently confirmed that a schedule containing some of the information Mr. Kemper requested is maintained for Region 9, the region that encompasses Owen County, and that Region 9's Captain James Sutter has been directed by the Division of Motor Vehicle Enforcement to furnish Mr. Kemper with a copy of the schedule. In view of the period of time that has already elapsed since Mr. Kemper's request was received, we urge Region 9 to immediately transmit a copy of the schedule for the months of February, March, and April 2000 to Mr. Kemper.
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.