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 Fayette County Legal Aid, Inc. in response to Edgar A. Scott's open records request for records related to his Indictment number 03-CR-00666 and Appeal number 2004-CA-000039, violated the Open Records Act. For the reasons that follow, we conclude that the agency's actions did not violate the Act.
After receipt of notification of Mr. Scott's appeal and a copy of the letter of appeal, Herbert T. West, Attorney at Law, Fayette County Legal Aid, Inc., provided this office with a copy of his August 24, 2005, letter to Mr. Scott, in which he advised:
I have received your request for records. All discovery materials have been previously copied for you and provided to you at the detention center. I am not representing you on your appeal and do not have any of those documents. You would need to contact Gene Lewter about appeal documents.
If there is something specific you have lost or need, please advise. You must be specific in your request because it is time consuming and expensive to send materials to you that have already been provided.
We find that the Fayette County Legal Aid, Inc. properly denied Mr. Scott's duplicative request for records that he had previously been provided. With respect to duplicative requests for documents, the Attorney General has stated that an agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6. We reasoned:
We do not believe, however, that [an agency] is required to satisfy the identical request a second time in the absence of some justification for resubmitting that request. KRS 61.872(2) provides that "[a]ny person shall have the right to inspect public records" during regular office hours or by receiving copies through the mail. Common sense dictates, however, that repeated requests for the same records may become unreasonably burdensome or disrupt the agency's essential functions. Thus, at page 6 of OAG 92-91 this office observed:
To produce . . . records once entails some inconvenience to the agency; to produce them three and four times requires a level of "patience and long-suffering" that the legislature could not have intended. Citing OAG 77-151, p. 3.
Here, as in our earlier decisions, unless Mr. Scott can explain the necessity of reproducing the same records which either already have been provided or have been inspected by him, such as loss or destruction of the records, we can see no reason why Fayette County Legal Aid, Inc. must satisfy the same request a second time. 95-ORD-47.
Moreover, 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 agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Mr. West advised Mr. Scott that he did not have any of his appeal documents. 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.
In addition, 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.
Mr. Scott was notified that his appeal documents would be maintained by his appellate attorney and was advised that he should contact his appellate attorney, Gene Lewter. Accordingly, we conclude that the agency's response was in substantial compliance with KRS 61.872(4) and the Open Records Act.
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:
Edgar A. Scott, #167876Eastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Herbert T. WestFayette County Legal Aid, Inc.111 Church StreetLexington, KY 40507