Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Assistant Public Advocate Sandra E. Downs violated the Kentucky Open Records Act in failing to provide Samuel Edwards with copies of "All photos & results from tests that were ordered for Wesley Hutchison." By undated letter received in this office on June 16, 2006, Mr. Edwards initiated this appeal from the denial of his request "to inspect public records pertaining to a trial that took place in Adair County Circuit Court on January [10-11], 2004." Upon receiving notification of Mr. Edwards' appeal from this office, Ms. Downs advised us that she was the trial attorney for Mr. Edwards in the referenced case. As further observed by Ms. Downs:
Upon the verdict of this case, I filed the proper appeal documents and all of my files were forwarded to our appeals division in Frankfort. Mr. Edwards has been made aware of that fact but continues to request items from me that I do not have. Enclosed please find copies of correspondence between myself and Mr. Edwards regarding his continued requests. I have not failed to provide him with any items to which he is entitled. I have provided him with everything that I have in my files.
Because Ms. Downs cannot produce for inspection or copying records that are no longer in her possession, nor is there any evidence of record to refute her position, this office finds that Ms. Downs responded in a manner consistent with the Act.
In our view, the analysis contained in 06-ORD-040, a copy of which is attached hereto and incorporated by reference, is equally applicable on the facts presented. Because Ms. Downs made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," as evidenced by the record, Ms. Downs complied with the Act, regardless of whether the search yielded any results, by notifying Mr. Edwards in writing that no further responsive records were found, and providing a credible explanation as to why any such records would be in the custody of the DPA in Frankfort, Kentucky, with the exception of those already provided to him. 05-ORD-109, p. 3. 1
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.
Samuel Edwards, # 172561CCA/LACP.O. Box 900Beattyville, KY 41311
Sandra E. DownsAssistant Public Advocate111 Jamestown St.Columbia, KY 42728
Footnotes
Footnotes
1 40 KAR 1:030, Section 6 provides: "Moot complaints. If 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." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has consistently held that when access to public records is initially denied but subsequently granted, the "propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. Because Ms. Downs has provided Mr. Edwards with "everything" in her files, any issues related to those records are moot.