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 inaction of Bracken County Superintendent Anthony Johnson relative to the request of Steven J. Farmer for copies of "mail logs, telephone logs and records on paper, of talk between [Mr. Johnson], [Judge William T.] Walton and [his attorney, Raymond S.] Bogucki" violated the Kentucky Open Records Act. Upon receiving notification of Mr. Farmer's appeal from this office, W. Kelly Caudill, attorney for the Bracken County Board of Education, responded on behalf of Superintendent Johnson. Having discussed this matter with the Superintendent, Mr. Caudill advises this office "there are no mail logs, telephone logs or records on paper of talk between him, Judge Todd Walton and attorney Ray Bogucki." Accordingly, Mr. Caudill's position is "that Mr. Farmer's request is for non-existent materials and therefore it is impossible to provide him" with copies of responsive records.
As long recognized by the Attorney General, a public agency cannot produce for inspection or copying records which do not exist. 04-ORD-036, p. 5; 03-ORD-205. In our view, 05-ORD-109, a copy of which is attached hereto and incorporated by reference, is controlling as to the sole issue presented by this appeal. A public agency discharges its duty under the Open Records Act by affirmatively indicating that no responsive records exist as the Superintendent ultimately did here. Id. Absent objective evidence to the contrary, this office has no reason to question the Superintendent's veracity.
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.