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 Monty Turner's request for a copy of records "concerning case number 03-F-922 and/or indictment number 03-CR-00477-001, 03-CR-00477-002, 03-CR-00477-002, 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. Turner asserted that he had received no response from the DPA to his April 5, 2006, request. Enclosed with his letter of appeal was an open records request dated April 5, 2003. After receipt of notification of the appeal, Margaret Case, General Counsel, DPA, provided this office with a response to the issues raised in the appeal. In her response, she advised, in relevant part, that the DPA had never received an open records request from Mr. Turner, either in 2003 or 2006.
Insufficient information is presented in this appeal for this office to resolve the factual dispute concerning the actual delivery and receipt of Mr. Turner's open records request, and we make no finding in this regard. See 03-ORD-061.
However, after initiation of the appeal, the DPA provided this office with additional information relating to Mr. Turner's open records requests. Mr. Turner submitted a subsequent June 5, 2006, request to the Paducah DPA office asking for the records similar to his April 5, 2003, request. By letter dated June 9, 2006, J. Chris McNeil, Directing Attorney, DPA, responded to this request, advising:
I have received your open records request dated June 5, 2006, that our office received via mail on June 8, 2006, requesting all documents in the possession of DPA concerning case number 03-F-922 and/or indictment number 03-CR-00477-001, 03-CR-00477-002, 03-CR-00477-003. This office does not have in its possession any document concerning your case. I know that you received a letter from Amy Harwood, another lawyer in this office, dated June 5, 2006 in which she indicated she did not have her original file any longer as it had been sent to your conflict attorney. As for the other case numbers that you listed, which appear to refer to cases of your co-defendants, you should know that we cannot release information to you on other client's cases. You can certainly try to request information from their attorney's or request public information through the clerk's office.
We find that this response of the DPA was consistent with the requirements of the Open Records Act and prior decisions of this office. The DPA advised Mr. Turner that it did not have copies of documents relating to his case and that another attorney in the Paducah DPA office had previously advised him that the office did not have the original file in his case as it had been sent to Mr. Turner's conflict attorney. 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; 99-ORD-150. 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 records and provided suggestions of where he might go to locate the records he seeks. KRS 61.872(4) ; 99-ORD-150. Accordingly, we find no violation of 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.