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 Department of Public Advocacy (DPA) relative to Calvan Washer's request for a copy of "all records and tapes" regarding his case #01-CR-00009 violated the Open Records Act. For the reasons that follow, we conclude that the Department's actions were proper and did not violate the Act.
In his letter of appeal, Mr. Washer asserted that he had received no response from the DPA to his request.
After receipt of notification of the appeal, Renae Tuck, Assistant Public Advocate, DPA, provided this office with a copy of the January 6, 2005, letter from Allen V. Graf, Assistant Public Advocate, to Mr. Washer advising him that enclosed with the letter was a complete copy of his file in DPA's possession, as well as a complete copy of the court file and the audio and video discovery contained on the computer CD's.
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." Since Mr. Washer was provided with a copy of the complete file of the requested records in the DPA's office files, the appeal as to those records is moot and no decision will be rendered as to that issue.
The DPA also advised Mr. Washer that it did not have copies of the videotapes of his court appearances. 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 DPA further explained to Mr. Washer that because he had pleaded guilty to the amended charges, it had no reason to procure the videotapes of his court appearances. The DPA discharged its duty under the Open Records Act by affirmatively so advising and explaining why it did not have a copy of these videotapes. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
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.