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 Lexington Fayette Urban County Government-Division of Police violated the Kentucky Open Records Act in partially denying the request of John R. Rhorer, Jr. for seven categories of records, including specified Uniform Citations (issued to Andrea Henning), resulting from an incident which occurred at 727 Hambrick Avenue, Lexington, Kentucky, between the hours of 10:30 p.m. on November 24, 2005, and 1:00 a.m. on November 25, 2005. With regard to records the Division has already provided to Mr. Rhorer, any issues are moot per 40 KAR 1:030, Section 6. Although Mr. Rhorer satisfied his burden of identifying the requested records with "reasonable particularity" to enable the Division to identify and retrieve the records implicated by Items 1-6, the LFUCG cannot produce for inspection or copying records which do not exist; the LFUCG belatedly complied with the Open Records Act in advising Mr. Rhorer that no audio/ video recordings, preliminary notes, Arrest Report concerning the named individual, or juvenile citations were generated relative to identifiers provided. Having acknowledged that records exist which are responsive to Item 7 of the request ("audio CD" and "arrest report" concerning George William Hills and separate but related charges stemming from the incident in question), for which Mr. Rhorer did not initially provide the requisite identifiers, the LFUCG should permit Mr. Rhorer to inspect a redacted copy of said records upon receipt of a properly framed request.
By letter dated September 25, 2006, Mr. Rhorer asked the Division to produce for "examination and/or copying" the following records:
1. legible copies of Uniform Citation, Control No. D375751, Case No. 2005-218207, which citation was issued to Andrea Henning on or about November 24, 2005;
2. same request as is made under paragraph 1 above but with regard to Citation bearing Control No. D367531;
3. same request as is made under paragraph 1 above but with regard to Citation bearing Control No. D375752;
4. copies of all reports made and/or filed by each member of the Lexington Metro Police Department in any way relating to the Citations identified in paragraphs 1-3 above or relating to the incident or occurrence from which the Citations arose;
5. identity, by name and badge number, of all members of the Lexington Metro Police Department who responded or reported to 727 Hambrick Avenue, Lexington, Kentucky or its vicinity between the hours of 10:30 p.m. on November 24, 2005 and 1:00 a.m. on November 25, 2005;
6. copies of all reports, logs, time entries or other documents filed, logged or submitted by each member of the Lexington Metro Police Department identified in Request No. 5 above for the time period from 10:30 p.m. on November 24, 2005 and 1:00 a.m. on November 25, 2005; and
7. all documents not otherwise specifically requested pursuant to paragraphs 1-6 above, relating to an incident involving purported violations of the noise ordinance and/or underage drinking at property located at 727 Hambrick Avenue, Lexington, Kentucky on November 24, 25, 2005, including any photographs or audio and/or video recordings made thereof and any written transcripts of same.
In a timely written response, Karen H. Steed, Assistant Records Custodian, advised Mr. Rhorer as follows:
In response to 1-3 above, all adult criminal and traffic citations are open for public inspection, and these documents are available to you. The suspect listed on the citations has an expectation of privacy with respect to month and day of birth, driver's license number, and social security number pursuant to KRS 61.878(1)(a), which states [among those records excluded from application of the Act in the absence of a court order are] "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." This information has been redacted. We retain only the copies of citations. If these copies are not as legible as you prefer, you can obtain a copy of an original citation from District Court at 150 N. Limestone, Lexington, Kentucky 40507, (859) 246-2228.
With regard to Items 4, 6, and 7 of Mr. Rhorer's request, Ms. Steed noted that "preliminary and handwritten notes of the officers who investigated this incident are exempt from public inspection pursuant to KRS 61.878(1)(i)(j)," quoting the language of those provisions without further elaboration. In addressing Item 5, Ms. Steed informed Mr. Rhorer that "a call log and dispatch log is available to" him. Citing KRS 61.878(1)(a), Mr. Steed further advised that "Non-E911" information is exempt from public inspection and the "LPD Communications Unit" should be contacted with questions.
By letter dated October 5, 2006, Mr. Rhorer replied to Ms. Steed as follows:
I have retrieved from the Division of Police the nine pages of documents that you produced in response to my request. The documents which you produced appear to be fully responsive to my requests numbered 1, 2 and 3. In addition, you have produced a redacted copy of the Incident Report relating to this incident. I understand and accept your redaction of the name(s) of the person or persons who made the initial report to the police. . . . . Further, I understand and accept your redaction of certain information concerning Ms. Henning.
In addressing the Division's response as to Items 4, 6, and 7, Mr. Rhorer observed:
First, I do not understand and/or disagree with the use of exceptions (i) and (j) within the context of a police investigation of purported violations of a noise ordinance and underage drinking laws. Such matters do not call for the expression of any opinions, formulation of policies, preliminary recommendations or correspondence with private individuals. Any notes or records filed by the officers who responded to this incident would not have been preliminary under any reasonable definition of that term and certainly not within the context of subsections (i) and (j).
Second, KRS 61.878(1)(i)(j) has no applicability to police reports where the matter to which those reports relate has been concluded. As indicated in [06-ORD-043], "It is well established that a complaint, initiating or charging document, or any other document that spawns an investigation must be made available for public inspection at the conclusion of the investigation and upon the imposition of final agency action, including the decision to take no action." Numerous reported decisions are cited as support for this position.
Ms. Henning was, in fact, prosecuted and the criminal actions against her have been concluded, as were two additional actions involving two other individuals arrested at the scene. Therefore, the entire police record on this matter must now be opened for public inspection, subject to the redactions which you have already made. (See also [05-ORD-177], holding that subsections (i) and (j) were enacted to protect the integrity of an agency's decision-making process by encouraging the free exchange of opinions and ideas but is not served by the non-disclosure of reports which form the basis for the final action taken.)
Clearly, once the decision to issue the subject citations was made and the further decision was made to prosecute Ms. Henning (and the other two individuals) for these violations, the entire police record on this matter, including all reports, logs, time entries and notes which were filed, logged or submitted by each identified member of the police department, became subject to disclosure under the Open Records Act.
Third, I am not certain that a complete review of the relevant files was made. It is my understanding that an incident such as this, where arrests are made, requires the preparation of an Arrest Report. It is my understanding that at least two arrests were made during the handling of this incident but no Arrest Report was provided to me in response to my request.
In Mr. Rhorer's view, Item 7 "was broad enough to include all documents maintained and possessed by the LFUCG Police Department which relate to the" specified incident; his request concerns the "entire incident, including any arrests that were made as a result thereof." To avoid any "misunderstanding as to the breadth" of his request, Mr. Rhorer asked the Division to "produce all documents (i.e., the entire police record/file) relating to what transpired" on the date(s) in question; this "would include any audio or video recordings relating to same."
By letter dated October 9, 2006, Ms. Steed went "into more detail" for Mr. Rhorer. According to Ms. Steed, "Items 4, 6, and 7 are essentially asking for the same thing--all reports, logs, photographs, or audio/ video recordings, etc. relating to the" specified incident; Item 7, however, "falls into the category of a blanket request." As correctly observed by Ms. Steed, the Attorney General has recognized that "as a precondition to inspection, a requesting party must identify with reasonable particularity those documents which he wishes to review. . . . . [A] request for any and all records which contain a name, a term or a phrase is not a properly framed open records request, and [it] generally need not be honored." Quoting from 00-ORD-132, Ms. Steed further argued that such a request "places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined records." In addition, the Act "was not intended to provide a requestor with particular information or to require public agencies to compile information to conform to the parameters of a given request. 00-ORD-07." In Ms. Steed's estimation, locating documents responsive to Item 7 of Mr. Rhorer's request "would require innumerable man hours"; requests that place such an unreasonable burden on a public agency "need not be honored under KRS 61.872(6)."
That being said, Ms. Steed advised Mr. Rhorer that officers in the Division "do not routinely make audio or video recordings in arrests. No audio or video recordings were made for this incident." Likewise, the "only logs were the dispatch log, and [Mr. Rhorer] was provided with that log upon [his] first request." In addition, no "preliminary, or final, notes of any kind were turned in with the paperwork on this case." Nevertheless, Ms. Steed reiterated that "preliminary and handwritten notes of the officers who investigated this incident are exempt from public inspection pursuant to KRS 61.878(1)(i)(j)." 1 With regard to Mr. Rhorer's understanding relative to arrest reports, Ms. Steed indicated that while "generally true that an arrest report is generated, such report is not always generated. There was no Arrest Report or 235, generated in this case." Although citations "were issued for juveniles, " such records are "exempt from public inspection pursuant to KRS 61.878(1)(a), 96-ORD-115, and KRS 610.320" according to Ms. Steed, whereas adult citations "are open for public inspection, and Ms. Henning's citations were made available to" him. In conclusion, Ms. Steed noted that agencies "do not have to provide documents that do not exist, honor requests for information as opposed to requests for specifically described documents, nor create records that do not already exist in order to answer questions," nor are agencies required to perform research, "make lists or compile information" to satisfy a request, as evidenced by 00-ORD-04, 99-ORD-71, and 01-ORD-216. Accordingly, Mr. Rhorer's request "for documents that do not exist is being denied."
In a reply dated October 12, 2006, Mr. Rhorer asked Ms. Steed to clarify whether she was asserting that none of the items named (audio/ video recordings, preliminary or final notes or reports by the officers, arrest reports, or logs other than dispatch log) are contained in the records of the LFUCG concerning matters arising from the specified incident, or that additional records do exist, but producing those would place an unreasonable burden on the Division because his request is "overly broad." If no such records exist, "no other excuse for not producing them was necessary." Because Mr. Rhorer limited his request to "documents that relate to an incident that occurred over a two hour span at a particular street address in Lexington, Kentucky," Mr. Rhorer disagrees with Ms. Steed's characterization of his request as overly broad. As correctly argued by Mr. Rhorer, he is "at a serious disadvantage due to the fact that [he has] no way of knowing how the police department labels or identifies its documents or records." Although the Division may use another method of identifying records, Mr. Rhorer is unable to use that method unless he is "uniquely familiar with police department lingo"; therefore, Mr. Rhorer felt it was necessary to ensure that his request was "broad enough to cover everything that might be in the file relating to this incident, no matter how it is labeled by the police." Rather than confirm the position of the Division as requested, Ms. Steed reiterated that she had provided Mr. Rhorer "with all documents available" in response to both his original request and his "follow-up letter" dated October 5, 2006.
Arguing that responses provided by the Records Custodian "have been inconsistent at best," Mr. Rhorer initiated this appeal; Mr. Rhorer asks this office to find that his original request, "as clarified" in his second letter, "was not overly broad," and that "all documents maintained by the police with regard to the specifically described incident should be produced subject to appropriate redaction of personal information and information relating to juveniles. " In support of his position that additional records exist, Mr. Rhorer notes that "during the course of the prosecution of the citations issued in connection with this incident, the County Attorney's Office delivered to defense counsel a 5-10 minute audio recording of the moments surrounding the warrantless entry into 727 Hambrick Avenue." Attached to Mr. Rhorer's letter of appeal is a copy of an Arrest Report "relating to an arrest that was made at the scene during the incident in question," offered to refute Ms. Steed's assertion that none was generated. Finally, Mr. Rhorer cites the fact "no citations were issued to any juveniles" in connection with this incident, contrary to Ms. Steed's initial response, as a "reasonable basis" for believing that additional documents are in the file that have been improperly withheld.
Upon receiving notification of Mr. Rhorer's appeal from this office, Michael R. Sanner, Corporate Counsel, responded on behalf of the LFUCG. According to Mr. Sanner, there is "no case jacket regarding this particular incident. This means there is no hard copy of any documents regarding this incident indexed by name, date or event within the Division. As such, no 'police file' exists." Therefore, the only means by which the Division could retrieve documents regarding this incident "is to do a computer search for citations based on the name of the individual cited and the date or by case number" ; there is "no other method within the [Division] to locate documents absent these identifiers when no case jacket exists." Because Mr. Rhorer provided the requisite identifiers relative to Items 1-3, "all citations identified by Mr. Rhorer in his request were made available to him." In addition, the Division provided Mr. Rhorer with "the dispatch incident reports listing the names and badge numbers of the police officers involved. No other documents pertaining to these identifiers exist."
With regard to Ms. Steed's inconsistency regarding juvenile citations, Mr. Sanner clarifies that "no citations were issued to juveniles in this case. However, in her original response to Mr. Rhorer, Ms. Steed mistakenly stated that there were juvenile records available"; Ms. Steed simply confused this case "with a similar case where juvenile citations were issued." In addressing Mr. Rhorer's claim relative to arrest reports, Mr. Sanner notes that the "uniform citations provided to Mr. Rhorer list[] a court date in each of the citations. Had someone been arrested, the word 'arrested' would have been printed where there is a court date." In short, a search using the identifiers provided by Mr. Rhorer (case number, person, and date) revealed that "no arrest was made." Although Mr. Rhorer contends that a copy of the "'arrest report' " attached (obtained from another source) to his appeal (case number 2005-00218234) should have been included in response to his original request, Mr. Sanner clarifies "this was an arrest report for George William Hills with a distinctly different case number than those requested by Mr. Rhorer." Unless the citations provided to Mr. Rhorer "cross referenced this case, the [Division] has no way of tracking or retrieving a separate report" absent the date, name, or case number. In Mr. Sanner's view, the report itself is "irrelevant to the present appeal. The arrested person was George William Hills and the case number is 2005-00218234"; the Division "had no way of providing a public copy to Mr. Rhorer absent this identifying information which he did not provide." Apparently, the "audio CD" in question "was booked into evidence regarding the arrest of Mr. Hills"; his name "and date of arrest or the case number" would be required to locate same.
Having summarized the legal arguments raised by Ms. Steed, Mr. Sanner reiterates that no "case jacket" exists for this incident so unless the Division had conducted an "exhaustive search," which is "not required by the Open Records Act, " it had "no way of knowing the existence of Mr. Hills' arrest, without document and audio CD identification of same." Mr. Rhorer requested documents regarding "Ms. Henning's citations, regarding violations of the noise ordinance and underage drinking. Mr. Hills was arrested for obstructing governmental operations and was assigned a completely separate case number. Had Mr. Rhorer identified Mr. Hills and/or the case number, the appropriate documents would have been provided to him." By letter dated October 30, 2006, Mr. Rhorer challenged Mr. Sanner's explanation of the "record keeping practices" of the Division since the implication is that "cross-referencing is a concept that is foreign to the Division." In his view, requiring the public to use "magic words" in order to have public officials "properly respond to open records requests is simply too burdensome." Finally, Mr. Rhorer is "still uncertain as to whether Mr. Sanner is claiming that there are no additional documents" that are responsive to his request or that "the LFUGC is refusing" to honor his request because it is "overly broad"; if the latter is true, Mr. Rhorer strongly disagrees because his request is limited to "documents relating to an incident that occurred over a two hour period at a specific street address" so "it would be hard to imagine how a request could be more specific." While this office agrees, the LFUCG apparently provided Mr. Rhorer with a copy of any existing record that is responsive to his request as framed.
As evidenced by the record, the Division provided Mr. Rhorer with a redacted copy of existing records that are "fully responsive" to Items 1- 3 of his request, as well as the call log and dispatch log in response to Item 5, and the Incident Report in response to Items 4 and 6. 2 According to 40 KAR 1:030, Section 6: "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." In applying this mandate, the Attorney General has consistently held that when access to public records which are the subject of a request is initially denied, but subsequently granted, the "propriety of the initial denial becomes moot." 04-ORD-046, p. 5, citing OAG 91-140. Because the Division has fully complied with Items 1 -3 of Mr. Rhorer's request, and partially complied with Items 4-6, this office must decline to issue a decision, to this extent, in accordance with 40 KAR 1:030, Section 6.
On appeal, the Division reiterates that no "other documents pertaining to these identifiers exist." More specifically, Mr. Sanner explains there is no "case jacket regarding this particular incident" meaning that no "'police file' exists." Although Ms. Steed mistakenly indicated otherwise, Mr. Sanner clarifies that "no citations "were issued to juveniles in this case." In response to Mr. Rhorer's second letter, Ms. Steed affirmatively indicated that "no audio or video recordings were made," nor do any logs exist aside from the dispatch log to which Mr. Rhorer was provided access in response to his initial request; likewise, "No preliminary, or final, notes of any kind were turned in with the paperwork on this case." 3 According to Mr. Sanner, the Division has "provided all the documents requested by Mr. Rhorer, withheld no documents and could not provide any further documents as even Mr. Rhorer admitted that his final request was broad." While Mr. Rhorer's characterization of his final request is not determinative, particularly when viewed in context, the Division appears to have ultimately complied with Items 1-6 of Mr. Rhorer's request by providing him with access to all existing records that are responsive.
As long recognized by the Attorney General, a public agency is not required to honor a request for records which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 99-ORD-198; 98-ORD-200; 91-ORD-17; OAG 91-112; OAG 87-54; OAG 83-111. It stands to reason that the Division cannot produce for inspection or copying that which it does not have. 02-ORD-118, p. 3. To clarify, the rights to inspect attaches only after the requested records are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. 4 In addressing the obligations of a public agency when denying access to public records on this basis, the Attorney General has observed:
[A]n agency's inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [other citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient.
02-ORD-144, p. 3; 04-ORD-205.
Accordingly, this office has held that a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively so indicating as 911 Dispatch ultimately did here. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 04-ORD-046, p. 4; 03-ORD-205, p. 3. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 03-ORD-205, p. 3; 99-ORD-98. When an agency denies the existence of requested records, it is "not incumbent on this office to conduct an investigation in order to locate the records whose existence or custody is in dispute" absent a reason to question the truthfulness of the agency's assertion. 01-ORD-36, p. 2; 04-ORD-205; 02-ORD-144; 94-ORD-140. To the contrary, the role of the Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(1), and this office is without authority to deviate from that statute.
In 1994, the General Assembly recognized an "essential relationship between the intent of [the Open Records Act] and those statutes "dealing with the management of public records, " and "the coordination of strategic planning for computerized information systems in state government" with the enactment of KRS 61.8715. To ensure "the efficient administration of government and to provide accountability of government activities, public agencies are required to maintain their records according to the requirements of these statutes." Id. Since this provision of the Open Records Act took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based upon the nonexistence of the requested records. In order to satisfy its burden of proof, an agency must offer some explanation for the nonexistence of the requested records at a minimum. See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame); 03-ORD-059 (radio run tapes were erased and reused in a manner consistent with the applicable records retention schedule and were therefore not available for review); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 98-ORD-47 (audit not in University's custody because it was never reduced to writing); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 94-ORD-140 (records of investigation not in sheriff's custody because sheriff did not conduct the investigation).
Although there may be occasions when the Attorney General requests that a public agency substantiate a denial based on the nonexistence of the records at issue by demonstrating the efforts undertaken to locate the records, consistent with KRS 61.8715, further inquiry is not warranted on the facts presented as the Division has offered a credible explanation for the nonexistence of additional records concerning the identifiers provided. Because the Division apparently made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," the Division has now complied with the Act, regardless of whether the search yielded any further results, by notifying Mr. Rhorer that no additional records were found relative to Items 1-6, and providing a credible explanation as to why. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-38; 97-ORD-161; OAG 91-101; OAG 90-26; OAG 86-38. In light of this determination, the remaining question is whether the Division properly denied Item 7 of Mr. Rhorer's request because the records are not identified with "reasonable particularity. "
Although the Division correctly summarized the relevant principles of law, the Division did not initially adduce clear and convincing evidence that honoring Item 7 of Mr. Rhorer's request would place an unreasonable burden on the agency as required to successfully invoke KRS 61.872(6); however, the Division provided the requisite degree of specificity on appeal. With regard to application of KRS 61.872(6), the analysis contained in 04-ORD-028, a copy of which is attached hereto and incorporated by reference, is equally applicable here, although a contrary outcome is dictated. Like the request in that decision, which this office found to be framed with sufficient clarity insofar as the investigatory records being sought related "to an isolated incident involving a named individual that occurred at a designated location on a specific date"), Item 7 of Mr. Rhorer's request would satisfy this precondition to inspection, in our view, if not for the context in which it must be judged. Because the Division has established that records concerning Mr. Hills could not practically be located without his name and the date of the incident and/or the case number, neither of which Mr. Rhorer was able to provide, this office must affirm the denial of Item 7 on the basis of KRS 61.872(6); 5 public agencies are not required to conduct an exhaustive search. On the unique facts presented, 05-ORD-014 (pp.4-7), a copy of which is attached hereto and incorporated by reference, is controlling. Upon receipt of a properly framed request, the Division should provide Mr. Rhorer with a copy of any existing records that are responsive but are not excluded from application 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.
John R. Rhorer, Jr.1112 Chinoe Rd.Lexington, KY 40502
Karen H. SteedAssistant Records CustodianLFUCGDivision of Police150 East Main StreetLexington, KY 40507
Michael R. SannerCorporate CounselLFUCGDepartment of Law200 East Main StreetLexington, KY 40507
Footnotes
Footnotes
1 To clarify, such records would be exempt under KRS 61.878(1)(i) and (j) unless adopted as the basis for the final action of the public agency. See 05-ORD-177, pp. 23-28, for the analysis employed by this office in determining whether a public agency has properly relied upon the cited exemptions in denying access to records. See also 05-ORD-221 (final action inquiry of KRS 61.878(1)(i) is moot rather than controlling if record cannot properly be characterized as correspondence with a private individual, a preliminary draft, or a note). Because such records do not exist relative to identifiers that Mr. Rhorer provided, further consideration of this issue is unwarranted.
2 Although the redaction of certain information would otherwise present a justiciable issue, Mr. Rhorer explicitly acknowledges that records should be produced "subject to appropriate redaction of personal information."
3 That being said, Ms. Steed then argued that "preliminary and handwritten notes of the officers who investigated this incident are exempt from public inspection pursuant to KRS 61.878(1)(i)(j)" thereby creating uncertainty as to whether such records exist; Mr. Rhorer's request for clarification was consequently more than reasonable.
4 As consistently recognized by this office, the Open Records Act does not empower the Attorney General to order the creation of records. See 96-ORD-139; OAG 89-66; OAG 89-32; OAG 83-111; OAG 80-308; OAG 79-547; OAG 78-231. In 95-ORD-48, the Attorney General reaffirmed this longstanding principle in light of recent amendments to the Open Records Act, expressly declining "the invitation to invade the prerogative of public agencies in determining, 'in accordance with standards, rules and regulations prescribed by the Department for Libraries and Archives,' what records they must create. KRS 171.640." Thus, our office has affirmed the principles articulated in OAG 78-231 and its progeny relative to records creation, concluding that the Attorney General "cannot order an agency to create records, or declare its failure to do so a subversion of the intent of the Open Records Act. " 96-ORD-139, p. 2. See 98-ORD-5 for additional discussion of this issue. As a corollary to this proposition, the Attorney General has often noted that a public agency cannot afford a requester access to nonexistent records.
5 See 05-ORD-057 and 06-ORD-155 relative to application of KRS 61.872(3), pursuant to which a public agency can decline to send copies through the mail prior to inspection if the records are not precisely described and readily available within the agency.