Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented is whether the actions of the City of Hollow Creek relative to Russell Hailey's April 17, 2007, request for "a copy of all voice recordings Mayor Putman recorded during phone calls between himself and me."
By letter dated April 20, 2007, L. Stanley Chauvin, III, City Attorney, City of Hollow Creek, responded to Mr. Hailey's request, advising him that no such recordings exist.
In a long line of opinions issued by this office, the Attorney General has held that a request for a nonexistent record cannot be honored inasmuch as an agency cannot furnish access to a record that it does not have. OAG 83-11; OAG 87-54; OAG 88-5; OAG 88-44; OAG 91-112; OAG 91-203. In the instant appeal, the City Attorney affirmatively advised Mr. Hailey that no such recordings exist. We have also recognized that it is not our duty to investigate in order to locate documents that the requesting party maintains exist or may exist, but the agency states do not exist. As we observed at page 5 of OAG 86-35, "This office is a reviewer of the course of action taken by a public agency and not a finder of documents or possible documents for the party seeking to inspect such documents."
In his letter of appeal, Mr. Hailey asserts that the Mayor told him that he was recording all the telephone conversations between himself and Mr. Hailey. This office has no reason to doubt the City's assertion that no responsive records exist and are not aware of any requirement that a public agency maintain such recordings. Accordingly, the City's response was entirely consistent with the procedural and substantive requirements of the Open Records Act. We affirm its denial of Mr. Hailey's request on the basis of the nonexistence of the records sought.
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.