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 actions of the Office of the Franklin County Attorney violated the Open Records Act in the disposition of Uriah Pasha's open records request for a copy of "[t]he letter Uriah Marquis Pasha mailed to your office dated September 19, 2008; and the response thereto."
In his letter of appeal, Mr. Pasha indicated that he had received no reply to his request. After receipt of notification of the appeal, the Office of the Franklin County Attorney advised the undersigned that the agency did not have a letter from Mr. Pasha dated September 19, 2008, but did have a copy of a Criminal Complaint, dated August 19, 2008, signed by Mr. Pasha and received by the Office of the Franklin County Attorney on August 27, 2008. The agency also had a copy of a December 16, 2005, Detention Order for Uriah Pasha, marked as Exhibit "A." Copies of these documents are attached hereto and will be forwarded to the parties with this decision.
Obviously, a public agency cannot afford a requester access to records that it does not have or that do not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The agency has discharged its duty under the Open Records Act by affirmatively so advising Mr. Pasha that it does not have the requested record dated September 19, 2008.
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.
The record on appeal does not contain sufficient information for this office to resolve the factual dispute between the parties regarding the disparity between records which have been provided, and those sought but not provided. Accordingly, the parties should continue to consult and mutually cooperate to resolve any differences or misunderstandings related to the requested records.
In his letter of appeal, dated October 6, 2008, Mr. Pasha stated that he had received no reply to his request, dated September 23, 2008. The failure of the agency to respond in writing to the request within three business days of its receipt constituted a procedural violation of the Open Records Act. KRS 61.880(1).
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.