Opinion
Opinion By: Gregory D. Stumbo, Office of Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the action of the Office of the Governor relative to the open records request of Michael D. Combs for "a copy of all documentation relating to the law firm of Greenebaum, Doll & McDonald's use of the Governor's mansion," violated the Open Records Act. For the reasons that follow, we affirm the agency's disposition of Mr. Combs' request.
By letter dated May 25, 2005, Michael T. Alexander, Deputy General Counsel, Office of the Governor, responded to Mr. Combs' request, advising:
There are no records in the Office of the Governor responsive to your request. However, please contact Robert Rudolph, Secretary of the Finance and Administration Cabinet, the official custodian of the records you seek.
On July 11, 2005, Mr. Combs initiated the instant appeal.
We begin by noting that 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 Office of the Governor discharged its duty under the Open Records Act by advising Mr. Combs that that office is not the custodian of the requested records. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
As noted above, the Office of the Governor affirmatively advised Mr. Combs that it did not have records responsive to his request. The only additional duty of the public agency in such a situation is to advise the requesting party of the name and location of the official custodian of the agency that would have the records in question, if such information is known to the agency. KRS 61.872(4); 03-ORD-225. This is what the Office of the Governor did. The Open Records Act requires no more.
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.
Michael D. Combs5 Fernwood CourtAlexandria, KY 41001
Michael T. AlexanderDeputy General CounselOffice of the Governor700 Capitol AvenueSuite 100Frankfort, KY 40601