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 Lexington Fayette Urban County Government (LFUCG) relative to John Fritz's request for access to certain records of the LFCUG violated the Open Records Act. For the reasons that follow, we find that the responses of the LFUCG were proper and did not violate the Act.
By letter dated May 24, 2005, Mr. Fritz submitted a request for the following records:
1. Each affidavit mentioned, but not attached, in LFUCG's Response to my appeal of LFUCG log #13,449 said appeal being the AG log #200500217.
2. The invoice/bill/statement from the bank charging LFUCG a fee for accessing "the cost for the cancelled check for the traffic camera at Harrodsburg and Lane Allen Road," regarding the fee you impose in your letter to me dated May 16, 2005 regarding log no. 13,394.
3. LFUCG's banking services agreement/contract with the bank/financial institution holding the cancelled check referenced in item two hereinabove, showing fees for services, specifically fees for accessing/ retrieving cancelled checks.
By response dated May 31, 2005, Michael R. Sanner, Corporate Counsel, LFUCG, advised Mr. Fritz that there were no documents responsive to items 1 and 2 of his request and that LFUCG was searching to see there were any documents responsive to item number 3 of his request and would advise by letter as to the status of that search within 5 - 7 business days. By letter dated June 9, 2005, Mr. Sanner advised Mr. Fritz that documents responsive to his request item number 3 were available for his inspection in the Department of Law, 11th floor of the Government Center, 200 East Main Street during regular business hours and copies could be made for .10 cents per page.
We are asked to determine whether the responses of the LFUCG were consistent with the Open Records Act. We conclude the responses were proper and did not violate the Open Records Act.
Addressing first the request for items number 1 and 2, LFUCG advised that records responsive to these items did not exist. Obviously, a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The LFUCG discharged its duty under the Open Records Act by affirmatively so advising that the requested records did not exist. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
Addressing request item number 3, the LFUCG advised that these records were available for Mr. Fritz's inspection and copying, if he desired, for .10 cents per page. 40 KAR 1:030, Section 6, provides: "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." Accordingly, since records responsive to request item number 3 have been made available for Mr. Fritz's inspection, the appeal is moot as to them and no decision will be rendered on this issue.
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.
Distributed to:
John FritzP.O. Box 1551Lexington, KY 40588-1551 Michael R. SannerCorporate CounselDepartment of Law Lexington Fayette Urban County Government200 East Main StreetLexington, KY 40507