Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Office of the Kentucky Secretary of State relative to the request of Bryan L. Reinhardt for certain extradition documents placed on Bryan L. Reinhardt in Case Nos. 04-F-230 & 03-F-206, Logan County District Court and "Cause Nos. out of the State of Indiana as follows : Marion County; Court 15; 49-F-150307-FD-115266 & Hamilton County: Court 4 ; 29d040210-FD-006767, violated the Open Records Act. For the reasons that follow, we conclude that the agency's response, after receipt of notification of the appeal and a copy of Mr. Reinhardt's original request, was consistent with the Act.
In his letter of appeal, dated August 12, 2004, Mr. Reinhardt stated he mailed his open records request to the Office of the Secretary of State on July 19, 2004 and, as of the date of his letter of appeal, he had yet to receive a response.
After receipt of Notification of the appeal, a copy of the letter of appeal, and Mr. Reinhardt's original request, Robert Adler, Administrative Specialist II, Secretary of State's Office, provided this office with a response to the issues raised in the appeal. In his response, Mr. Adler advised:
The Secretary of State's Office has no record of receiving the reported records request and believes it has not received such request (other than the copy accompanying the notice of open records appeal.)
In addition, the copy of the "request" does not request records in the Secretary of State's Office, but rather "information" that the Secretary of State's Office does not have [see items marked "SUBJ" and "SUBJ(2)" on the copy of the request].
We are asked to determine whether the actions of the Office of the Secretary of State violated the Open Records Act. For the reasons that follow, we find that the agency's response, after receipt of notification of the appeal and a copy of Mr. Reinhardt's original request, was consistent with the Open Records Act.
We first address Mr. Reinhardt's complaint that the agency failed to respond to his original request which he indicated in his letter of appeal was mailed to the agency on July 19, 2004. In his response, Mr. Adler advised that it appeared that the request was not received. Regarding disagreements of this nature between a requester and a public agency, this office, in OAG 89-81, stated:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
Insufficient information is presented in this appeal for this office to resolve the factual dispute concerning the actual delivery and receipt of Mr. Reinhardt's open records request. See 03-ORD-061.
Addressing the substantive response of the agency to Mr. Reinhardt's request, we find that the response was consistent with the Open Records Act. Mr. Adler advised that the Secretary of State's Office did not have the records requested by Mr. Reinhardt.
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. The Office of Secretary of State has advised Mr. Reinhardt that it does not have the records he requested. Obviously, a public agency cannot afford a requester access to records that it does not have or which do not exist. 99-ORD-98. The agency discharges 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.
Moreover, an agency is not obligated to honor requests that constitute a request for information as opposed to a request for specifically described records. The Kentucky Open Records Act addresses requests for records, not requests for information. In 95-ORD-131, p. 2, we observed:
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request."
It appears that Mr. Reinhart is requesting that the requested extradition records be sent to or retrieved by the Kentucky Secretary of State. Although a requester is entitled to nonexempt records that a public agency has created or that have come into its custody, and that it has retained, the public agency is not obligated to retrieve records, which it could obtain, but which were not in its custody, to satisfy an open records request. 98-ORD-90.
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.