Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Office of the Governor violated the Kentucky Open Records Act in denying the request of Joseph L. Silverburg to inspect or be provided with a copy of "any and all executive orders . . . granting the private law firm of Henry Watz Gardner Sellars & Gardner authority to represent the Commonwealth of Kentucky in Civil Action No. 04-CI-00008" in Lee Circuit Court. Because the Governor's Office does not possess any records which are responsive to Mr. Silverburg's request, the Governor's Office fully discharged its statutory duty by affirmatively indicating as much to Mr. Silverburg in writing upon learning of his request. 1
Upon receiving notification of Mr. Silverburg's appeal from this office, Michael T. Alexander, Deputy General Counsel, responded on behalf of the Governor's Office. According to Mr. Alexander, "[t]here are no records in the Office of the Governor responsive to [Mr. Silverburg's] request." As a public agency, the Governor's Office must comply with both the procedural and substantive provisions of the Open Records Act. KRS 61.880(1) dictates the procedure which a public agency must follow in responding to a request submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final action.
However, the Attorney General has consistently recognized that a public agency cannot provide access to records which it does not have or which do not exist. 04-ORD-059, p. 4; citing 03-ORD-205, p. 3; 02-ORD-145; 01-ORD-36; 99-ORD-98; 97-ORD-17; 93-ORD-134. Rather, the right to inspect attaches only if the requested records "have been prepared, owned, used, in the possession of or retained by a public agency. " 02-ORD-120, p. 2, citing 97-ORD-18; KRS 61.870(2). In addressing the obligations of an agency denying access to public records on this basis, the Attorney General repeatedly observed:
[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [other citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient.
02-ORD-144, p. 3; 01-ORD-38; 00-ORD-83; 97-ORD-16; 96-ORD-164; OAG 91-101; OAG 86-38. In other words, an agency discharges its duty under the Open Records Act by affirmatively indicating that the requested records do not exist as the Governor's Office ultimately did here. The Office of the Governor obviously cannot produce for inspection or copying that which it does not have. 04-ORD-059, p. 4. "Nor is it incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2; 04-ORD-059.
In short, the role of the Attorney General in adjudicating an open records dispute is defined by KRS 61.880(2), and this office is without authority to deviate from that statute. Although there may be occasions when the Attorney General requests that a public agency substantiate a denial based on the nonexistence of the requested records by demonstrating the efforts undertaken to locate the records or explaining why no such records were generated consistent with the mandate of KRS 61.8715, further inquiry is not warranted on the facts presented. To the contrary, the position of the Governor's Office is entirely credible. Although the Governor's Office provides no explanation as to why responsive records do not exist, 04-ORD-210, in which Henry Watz Gardner Sellars & Gardner, PLLC clarifies that it does not represent the Commonwealth of Kentucky in any action nor is it authorized to do so in responding to an identical request submitted by Mr. Silverburg, conclusively resolves this issue. Id.
A party aggrieved by this decision may appeal it by initiating an 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.
Joseph L. Silverburg, # 151608Lee Adjustment CenterP.O. Box 900 Beattyville, KY 41311
John RoachGeneral Counsel700 Capitol AvenueCapitol Building, Suite 101Frankfort, KY 40601
Michael T. AlexanderDeputy General Counsel700 Capitol AvenueCapitol Building, Suite 101Frankfort, KY 40601
Footnotes
Footnotes
1 Because neither party addresses the timeliness of the response provided by the Governor's Office nor does the record contain conclusive evidence regarding the actual delivery and receipt of Mr. Silverburg's request, further analysis of this procedural issue is unwarranted. See 04-ORD-203; 04-ORD-205.
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