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 Commonwealth's Attorney for the 26th Judicial District of Kentucky violated the Open Records Act in the disposition of Charles E. Hensley's January 23, 2006, request for another copy of the tape the Commonwealth's Attorney had provided him in 2004, because the tape provided was inaudible, and the name and address of the federal authorities from whom he had obtained the tape. For the reasons that follow, we find that the Commonwealth's Attorney's response did not violate the Act.
By letter dated January 25, 2006, the Commonwealth's Attorney advised Mr. Hensley that the tape he had sent him was the only tape his office had and he could not make it more audible. He further advised him that the tape came from the FBI and/or the U. S. District Attorney's Office, and he could contact them and see if they had anything else. Shortly thereafter, Mr. Hensley initiated the instant appeal.
After receipt of notification of the appeal and a copy of the letter of appeal, the Commonwealth's Attorney provided this office with a response to the issues raised in the appeal. In his response, he advised that his office did not have the original of the tape; that Mr. Hensley had been provided with the only copy of the tape his office had; and that Mr. Hensley's request for the addresses of the federal authorities was a request for information, which was not in his records concerning the matter.
In 04-ORD-099, an appeal involving the same parties, we found that the Commonwealth's Attorney had gone beyond his statutory duties in locating a copy of a responsive record not already in his possession and providing him with a copy of the tape. In reaching this conclusion, we stated:
In 1992, the Kentucky Open Records Act was amended to include the following permanent exception to the general rule of mandatory disclosure of public records:
KRS 61.878(1)(h) (emphasis added). In enacting KRS 61.878(1)(h) the General Assembly clearly intended to afford permanent protection to records of the Commonwealth's Attorney which relate to criminal investigations or criminal litigation. See Skaggs v. Redford, Ky., 844 S.W.2d 389 (1993) and 93-ORD-137. Accordingly, we find that the Commonwealth's Attorney for the 26th Judicial District was under no obligation to honor Mr. Hensley's request. Nevertheless, the Commonwealth's Attorney took extraordinary steps in order to locate, and provide Mr. Hensley with a copy of a responsive record and we commend him for his efforts.
We reach the same conclusion here. Under authority of KRS 61.878(1)(h), the Commonwealth's Attorney was under no obligation to honor Mr. Hensley's request for another copy of a tape previously provided or locating a copy of the tape not in his possession or providing the addresses of the federal authorities. As noted above, records or information compiled and maintained by Commonwealth's Attorneys pertaining to criminal investigations or criminal litigation "shall be exempted from the provisions of the Open Records Act and shall remain exempted" after enforcement action, including litigation, is completed or a decision is made to take no action. KRS 61.878(1)(h),
Moreover, we conclude that the agency's response was proper and consistent with the Act and prior decisions of this office. This office has consistently recognized that a public agency cannot provide a requester access to a record or document which it does not have. 98-ORD-35; 96-ORD-190; 96-ORD-163. In his response, the Commonwealth's Attorney advised Mr. Hensley that he did not have another copy of the tape and that he had been provided with the only copy of the tape the office had. Accordingly, we conclude that the agency's response that it did not have a record responsive to Mr. Hensley's request was proper and consistent with the Open Records Act.
Likewise, this office has repeatedly recognized that requests for information, as opposed to records, are outside the scope of the open records provisions. See, for example, OAG 89-77. Mr. Hensley's request for addresses of the federal authorities that had provided the tape was a request for information, rather than a request for public records. Thus, we conclude that the agency's response to the request on this basis was also proper and in accord with 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.