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 Louisville Division of Police - Office of Professional Standards violated the Open Records Act in the disposition of Bobby D. Brock's November 24, 2000, request for a copy of "any complaints filed against Merideth Lindeman #2988 at any time." For the reasons that follow, we affirm OPS's disposition of Mr. Brock's request.
In a letter directed to this office following commencement of Mr. Brock's appeal, Stephanie Harris, Assistant Director of Law for the City of Louisville, explained that OPS did not receive Mr. Brock's request until December 6, 2000, one day before this office notified OPS that he had initiated an appeal, and that his appeal was therefore premature. Nevertheless, Ms. Harris stated that OPS has since advised the City's Department of Law "that there are no complaints filed against Officer Merideth Lindeman," and that therefore no responsive records exist. This response was entirely consistent with the requirements of the Open Records Act, and the principle that a public agency cannot afford a requester access to a document that does not exist.
In a long line of opinions issued by this office, the Attorney General has held that a request for a nonexistent record cannot be honored inasmuch as an agency cannot furnish access to a record that it does not have. OAG 83-11; OAG 87-54; OAG 88-5; OAG 88-44; OAG 91-112; OAG 91-203. We have also recognized that it is not our duty to investigate in order to locate documents that the requesting party maintains exist, but the agency states do not exist. As we observed at page 5 of OAG 86-35, "This office is a reviewer of the course of action taken by a public agency and not a finder of documents or possible documents for the party seeking to inspect such documents."
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "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 . . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants additional inquiries. Because no complaints have been filed against Officer Lindeman, the Office of Professional Standards has no responsive records. The question presented in this appeal is factual, and not legal, in nature.
This office has no reason to doubt the City's assertion that no responsive records exist. Accordingly, the City's response was entirely consistent with the procedural and substantive requirements of the Open Records Act. We affirm its denial of Mr. Brock's request on the basis of the nonexistence of the records sought.
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 proceedings.