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 Department of Public Advocacy violated the Kentucky Open Records Act in denying the request of Tony Clark to receive a copy of his file, "including any and all records, reports or other information pertaining to me, including that which is protected by the attorney-client privilege." In a "Release Authorization for Client Records" dated October 12, 2006, Mr. Clark authorized the DPA and his "attorney, Patrick Romer," to release a copy of the aforementioned records to him. By undated letter, Erin Hoffman Yang, Assistant Public Advocate, Post Trial Division, responded on behalf of the DPA, advising Mr. Clark that her office was "in possession of the records" that he requested; however, Ms. Yang also returned Mr. Clark's authorization and expressed regret over not being able to assist him. By letter dated October 30, 2006, Mr. Clark initiated this appeal challenging the failure of the DPA to provide "ANY explanation at all as to why they could not help" him.
Upon receiving notification of Mr. Clark's appeal, Ms. Yang supplemented her original response. According to Ms. Yang, the Post Trial Division "has never represented Mr. Clark in case #04-CR-45. Apparently, Mr. Clark was erroneously informed that the [DPA] possessed records from his case 04-CR-45." As explained by Ms. Yang, she "intended to send Mr. Clark a letter informing him that [DPA is] not in possession of the records he requested. Unfortunately, rather than writing 'our office is not in possession of the records,' counsel inadvertently omitted the word 'not.' Thus, it appeared to Mr. Clark that the [DPA] was simply denying his request." Ms. Yang "sincerely regrets the oversight, and apologizes" for the resulting confusion. In closing, Ms. Yang reiterates that her office "has no records related to Mr. Clark and is therefore unable to grant his records request. However, pursuant to DPA policy #14.04, Mr. Clark is in fact entitled to his file."
In our view, the reasoning of 05-ORD-108, a copy of which is attached hereto and incorporated by reference, is equally applicable on the facts presented. As long recognized by the Attorney General, a public agency cannot produce for inspection or copying nonexistent records or those which it does not possess. Having clarified in writing that no existing records in the custody of the DPA are responsive to Mr. Clark's request, and provided a credible explanation as to why none were created, the DPA has discharged its duty under the Open Records Act; nothing more is required.
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.