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 Metro Public Defender violated the Open Records Act in the disposition of Robert Edwin Vaughn's May 23, 2003 request for "a copy of [his] file, including any and all records, reports, notes, or other information pertaining to [him] in case number 03-CR-0155 . . . ." For the reasons that follow, we affirm the Public Defender's disposition of Mr. Vaughn's request.
In a response dated May 29, 2003, Deputy Chief Public Defender Leo G. Smith notified Mr. Vaughn that the records Mr. Vaughn requested were being compiled and would be forwarded to him upon prepayment of reasonable copying charges. Additionally, Mr. Smith advised Mr. Vaughn that he could obtain other pertinent records from the Jefferson Circuit Court Clerk -- Criminal Division, the Jefferson District Court Clerk, and Special Services, and provided him with the addresses of these agencies. Following an exchange of correspondence, Mr. Smith notified Mr. Vaughn that the Louisville Metro Public Defender maintained 225 pages of materials and transcripts that were responsive to his request, and upon receipt of payment in the amount of $ 22.50, mailed the records to Mr. Vaughn. 1
On appeal, Mr. Vaughn does not dispute receipt of these records but questions why he did not receive "any medical records, any notes that [his] attorneys should have [written]," or any records from the Social Security Administration, emphasizing that he saw a doctor and that such records must therefore exist. In supplemental correspondence directed to this office following commencement of Mr. Vaughn's appeal, Mr. Smith explained:
Contrary to [Mr. Vaughn's] assertions, this office has no Social Security Administration records or medical records pertaining to him. After executing the releases for his assigned attorneys, but before the records were obtained, a guilty plea was entered. Therefore, due to Mr. Vaughn's plea and sentencing, those records were never obtained by this office.
Upon this basis, we affirm the Public Defender's disposition of Mr. Vaughn's request. 2
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 or are otherwise not in its custody.
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 Mr. Vaughn entered a guilty plea before the Public Defender obtained the records in dispute, those records are not in the agency's custody. Simply stated, the Public Defender is 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. Smith's statement that the documents requested are not in the files of the agency he serves. The response of the public agency 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 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 proceeding.
Footnotes
Footnotes
1 Over one month elapsed between the date of Mr. Smith's initial correspondence with Mr. Vaughn and his subsequent correspondence advising Mr. Vaughn of the costs associated with reproduction of the records in his file. Although Mr. Vaughn does not specifically complain about this unexplained delay, we remind the Louisville Metro Public Defender:
Nothing in the statute permits an agency to postpone or delay [the three day] statutory deadline [codified at KRS 61.880(1)]. The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to provide the requester with timely access to the requested records.
93-ORD-134, p. 3; see also 01-ORD-21. Barring the unavoidable circumstances described in the cited statutes, "timely access" is generally defined as "any time less than three days from agency receipt of the request." OAG 84-300, p. 3, cited in 93-ORD-134, p. 11.
2 Mr. Smith also advances the argument that records generated in the course of the attorney/client relationship are not subject to the Open Records Act. While we agree that such records are shielded from disclosure as to the public generally by operation of KRE 503, incorporated into the Act by operation of KRS 61.878(1)(l), we do not agree that such records are beyond the reach of the Act or that they are unavailable to the client inasmuch as the privilege belongs to the client. See, Hahn v. University of Louisville, Ky. App., 80 S.W.3d 771 (2001); 03-ORD-171 (Department for Public Advocacy failed to state a sufficient legal basis for denying client's request for records when it asserted that "records pertaining to his case are covered by the attorney/client privilege and therefore exempt under the Open Records Act" ). Copies enclosed.