Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in these consolidated appeals is whether the City of Alexandria and the Alexandria Police Department violated the Open Records Act in the disposition of Bernard Blau's January 19, 2001, request for copies of all records in the agencies' custody pertaining to "the injuries, fire, and damages that occurred at 550 Johns Hill Road, at NKU Campus, Campbell County, Kentucky on April 19, 2000 . . . ." For the reasons that follow, we affirm the agencies' disposition of Mr. Blau's request.
In a letter directed to this office following commencement of Mr. Blau's appeal, City Attorney Michael A. Duncan notified this office that the City of Alexandria and its Police Department responded to Mr. Blau's request, after ascertaining that no responsive records resided in their custody, by returning the request to him with a notation so indicating. Mr. Duncan explained:
[Mr. Blau's] request involved a fire that occurred in another city within Campbell County. Upon receipt of Mr. Blau's request, the City Police Clerk determined that no city agency or personnel responded to that fire, and that the City of Alexandria had no records involving Mr. Blau's request.
In closing, he asserted that the city, and its police department, "could not produce records that it did not maintain," and urged this office to dismiss Mr. Blau's appeal.
At page four of 93-ORD-51, this office recognized that a public agency cannot afford a requester access to a document which does not exist or which it does not have in its possession or custody. In general, it is not our duty to investigate in order to locate documents which the requesting party maintains exist, but which the public agency states do not exist.
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 the Alexandria Police Department did not respond to or investigate the NKU fire, neither it nor the city has custody of the records Mr. Blau seeks. Simply stated, the City of Alexandria and the Alexandria Police Department are not the custodian of those records. The question presented in this appeal is factual, and not legal, in nature.
This office has no reason to doubt Mr. Duncan's statement that the documents requested are not in the files of the agencies he represents. The response of the public agencies was proper and consistent with the provisions and requirements of the Open Records Act insofar as the agency cannot make available for inspection a document which it does not have in its possession or custody. The only additional duty of the public agency in such a situation is to advise the requesting party as to who does have the document in question if such information is known to the agency. KRS 61.872(4).
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.
Bernard Blau3699 Alexandria PikeCold Spring, KY 40176
Michael DuncanAlexandria City Attorney400 West Main StreetAlexandria, KY 41011
Gary FarmenChief of PoliceCity of Alexandria400 West Main StreetAlexandria, KY 41001
Roger E. SteffenCity Clerk, City of Alexandria400 West Main StreetAlexandria, KY 41011