Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the actions of Cumberland High School in response to the November 15, 2000 request of David H. Dixon for a copy of the Asbestos Inspection and Management Plan for Cumberland High School done by Beason and Beason in 1989, 1990, 1992, 1995, violated the Open Records Act.
By letter dated November 17, 2000, Edward G. Clem, Principal, Cumberland County High School, advised Mr. Dixon:
I have not been able to locate the information you have requested. I'm confident that information is available with school maintenance or the district architect. If I am able to locate the requested information you will be welcome to inspect it.
After receipt of the letter of appeal, Mr. Clem provided this office with a copy of his December 8, 2000 letter to Mr. Dixon in which he provided the name, address, and telephone number of the architectural firm that drew up the requested plan, advising that they may be able to provide him with the information he was seeking.
We are asked to determine whether the actions of Cumberland High School was a violation of the Open Records Act. For the reasons that follow, we conclude that agency's response was in accord with the Act and prior decisions of this office.
KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records
This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have, or which do not exist. 93-ORD-134. As required by KRS 61.872(4), Mr. Clem advised Mr. Dixon that he had not been able to find the requested records. In the alternative, he provided Mr. Dixon with the address, and telephone number of the architectural firm that drew up the requested records. Accordingly, it is the decision of this office that the response of the school was in substantial compliance with the Open Records Act.
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.
Davis H. DixonP.O. Box 484Cumberland, KY 40823
Edward G. Clem, PrnicipalCumberland High School600 Redskin DriveCumberland, KY 40823
Timothy Saylor, SuperintendentHarlan County School Board251 Ball Park RoadHarlan, KY 40831
Johnnie L. TurnerHarlan County School Board AttorneyP.O. Box 351Harlan, KY 40831