Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Kentucky Athletic Commission relative to the open records requests of Bart McQueary for certain agency records violated the Open Records Act. For the reasons that follow, we conclude the agency's response to the request for records was proper, but its failure to set forth an adequate basis or explanation for the nonexistence of the record raises a records management issue.
In his letter of appeal, Mr. McQueary indicated that he had sent numerous requests to the Commission and had received no response to his requests.
After receipt of Notification of the appeal and a copy of Mr. McQueary's letter of appeal, this office was provided with a copy of the Commission's September 10, 2002, response to Mr. McQueary's letter to the agency, dated August 29, 2002, in which he inquires about his previous requests. Enclosed with the Commission's response were copies of the records Mr. McQueary had requested, with the exception of his request for a copy of the 2002 wrestling license application of Edward Heath. The agency advised that it had been unable to find Mr. Heath's 2002 application in their records.
We are asked to determine whether the actions of the Commission violated the Open Records Act. For the reasons that follow, we conclude the agency's actions were in substantial compliance with the Act.
40 KAR 1:030, Section 6, provides:
Moot Complaints. If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter.
As noted in the Commission's September 10, 2002, letter to Mr. Kemper above, with the exception of his request for a copy of the 2002 wrestling license application of Edward Heath, all records relating to his request were provided to him. Accordingly, the issue as to those records is moot and no decision as to them will be rendered.
Addressing Mr. McQueary's request for a copy of the 2002 wrestling license application of Edward Heath, the Commission advised him that it could not find a copy of Mr. Heath's application in its 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. Obviously, a public agency cannot afford a requester access to records that it does not have. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Commission affirmatively advised that it could not find or did not have the record Mr. McQueary requested. The agency discharged its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
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.
The Commission advised Mr. McQueary that it could not find a copy of Mr. Heath's application in its records. The agency did not provide any explanation for the nonexistence of the record. An application for a wrestling license would be part and parcel of the agency's records relating to the licensing process for a wrestling license.
Accordingly we conclude the agency failed to establish an adequate basis or explanation for the nonexistence of the record, and thus did not meet its statutory burden of proof. KRS 61.880(2)(c); 97-ORD-116. For this reason, we have referred this matter to the Department for Libraries and Archives for a determination as to whether additional inquiries are warranted under KRS Chapter 171 and, in particular, KRS 171.640 requiring adequate and proper documentation of essential transactions of an agency.
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.