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 Personnel Cabinet relative to the open records request of Jeffrey Trent for "[a]ll records (excepting those exempted by statute) of Sgt. Richard Mazzacone, Franklin County Regional Jail," violated the Kentucky Open Records Act. For the reasons that follow, we find that the actions of the Cabinet did not violate the Act.
Initially, the Cabinet denied Mr. Trent's request because the requested records did not contain a specific reference to him. However, after receipt of notification of Mr. Trent's appeal of the denial, the Cabinet advised Mr. Trent and this office that it did not maintain records responsive to Mr. Trent's request, explaining that Mr. Mazzacone was not an employee of the Commonwealth. The Cabinet further advised that Sgt. Mazzacone was an employee of the Franklin County Regional Jail, a facility not operated by the Commonwealth, and explained that any responsive records would be in the custody of the Franklin County Regional Jail. As the Attorney General has consistently recognized, a public agency cannot afford a requester access to records that it does not have or which do not exist. 04-ORD-036. An agency discharges its duty under the Open Records Act by affirmatively so indicating. Because the Cabinet cannot produce that which it does not have and affirmatively indicated as much to Mr. Trent, its response did not violate the Open Records Act in this regard. 99-ORD-108, p. 3.
Moreover, pursuant to KRS 61.872(4): "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 furnish the name and location of the official custodian of the agency's public records." As noted above, the Cabinet provided Mr. Trent with the address of the Franklin County Regional Jail which may have the records he is seeking. Accordingly, it is the decision of this office that the Cabinet substantially complied with KRS 61.872(4) and the Open Records Act in its supplemental response to Mr. Trent's request.
A party aggrieved by this decision may appeal it by initiating an 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.