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 Jefferson County Attorney, Office of Domestic Violence Intake Center relative to the open records request of Dock B. Hillman for a copy of a petition for an EPO he signed in October, 2006, violated the Open Records Act. For the reasons that follow, we conclude the actions of the agency did not violate the Act.
In his letter of appeal, dated April 24, 2007, Mr. Hillman asserted that he had submitted a request to the Office of Domestic Violence Intake Center for a copy of an EPO petition he had signed on October 11, 2006. As of the date of his appeal, he indicated that he had received no response to his request.
After notification of the appeal, Paul Guagliardo, Assistant Jefferson County Attorney, provided this office and Mr. Hillman with a response to the issues raised in the appeal. In his response, he stated that no one in the Jefferson County Attorney's Office recalls seeing Mr. Hillman's request. He advised that the Jefferson Circuit Clerk had designated three employees of the Jefferson County Attorney's office as deputy circuit clerks to expedite the process of preparing EPOs, but the records generated are in the custody and control of the Circuit Clerk. He further advised that had the County Attorney received Mr. Hillman's April 16, 2007, open request, he would have directed him to the Jefferson Circuit Clerk, as the agency had done to his subsequent request dated May 3, 2007.
The Jefferson County Attorney's response to this office, with copy to Mr. Hillman, in which the agency affirmatively advised that records responsive to his request did not exist at the agency was proper and did not constitute a violation of the Open Records Act. Obviously, a public agency cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Thus, there was no violation in this regard.
Moreover, KRS 61.872 (4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
The agency notified Mr. Hillman, in the response provided this office, that an EPO, such as he requested would be in the custody and control of the Jefferson Circuit Court Clerk and directed him to that office. This was in substantial compliance with the requirements of KRS 61.872(4) and the Open Records Act.
Finally, insufficient information is presented in this appeal for this office to resolve the factual dispute concerning the actual delivery and receipt of Mr. Hillman's April 16, 2007, open records request, and we make no finding in this regard. See 03-ORD-061.
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.
Dock B. Hillman, # 106707
Susan Ely, DirectorDomestic Violence Unit600 West Jefferson StreetRoom 2086Louisville, KY 40202
Paul GuagliardoAssistant Jefferson County Attorney444 S. 5th StreetLouisville, KY 40202