Request By:
Debra Wright
J. M. Hall
Charlie Green Dixon
Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Knox County Fiscal Court violated the Open Records Act in the disposition of Debra Wright's request for a copy of "the video tape of the special called meeting of the Knox Whitley Humane Association on Wednesday, November 28, 2007."
In her January 14, 2008, request, submitted to the Knox County Fiscal Court and addressed to J. M. Hall, Knox County Judge Executive, Ms. Wright asserted that the tape was made by Judge Hall's appointed representative Darryl Baker who publicly stated that he was taping the meeting for the Judge's convenience. She further stated that she had asked Mr. Baker for a copy of the tape and had been rebuffed.
By letter dated January 14, 2008, Judge Hall, responded to Ms. Wright's request, advising:
? Per our phone conversation in December 2007, you were informed that I had never received a copy of such tape, nor have any knowledge that the said tape exists. Therefore, the record that you have requested is not available by my office or the Knox Co, Fiscal Court.
On March 10, 2008, Ms. Wright initiated the instant appeal. In her letter of appeal, she reiterated that Mr. Baker had attended and announced he was recording the meeting for the convenience of the Knox County Fiscal Court. She indicated that she had been informed the tape exists and is being withheld for reasons unknown.
After receipt of notification of the appeal, Judge Hall provided this office with a response to the issues raised in the appeal. In his response, he again stated that his office had no knowledge of the video tape Ms. Wright requested; and, if there was a tape, he did not request it nor had he ever seen it.
We are asked to determine whether the responses of the Knox County Fiscal Court violated the Open Records Act. For the reasons that follow, we conclude they did not.
Obviously, a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Knox County Fiscal Court discharged its duty under the Open Records Act by affirmatively advising Ms. Wright that it did not have the requested video tape.
Ms. Wright asserts the requested video tape exists, but the agency affirmatively advises that it does not have the tape, that it did not request that it be made, and did not have knowledge if it existed or not.
In 06-ORD-042, at p. 3-4, a case in which there was a disparity between the parties as to the existence of records, this office explained:
. . . When an agency's denial of an open records request is postulated on the nonexistence of records, the Attorney General has traditionally taken the position that the denial does not constitute a violation of the Open Records Act insofar as the agency cannot afford the requester access to a record or records that it does not possess. See, e.g., OAG 83-111; OAG 87-112; OAG 91-112; 97-ORD-17; 01-ORD-11; 02-ORD-120.
Regarding disagreements of this nature between a requester and a public agency, this office, in OAG 89-81, stated:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
As noted above, it is not within our statutory charter to investigate in order to locate a document that the requesting party maintains exists, but which the agency states does not exist, or to otherwise resolve a dispute arising from such a disparity. Accordingly, under the facts presented, we find no violation as to this portion of the response.
We have insufficient information before us in this appeal to resolve the issue as to whether a video tape of the meeting exists. Therefore we make no finding in this regard. However, if a tape had been prepared at the direction of the public agency and purchased with public funds, it would be subject to public inspection. OAG 91-111.
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.