Opinion
Opinion By: Jack Conway, Office of Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Louisville-Jefferson County Metro Government relative to Don Sherry's request for records related to the Center City Project violated the Open Records Act. For the reasons that follow, we find no violation of the Act.
By letter dated September 26, 2008, Mr. Sherry sent a request to Louisville-Jefferson County Metro Government requesting copies of the following records:
1. Copies of Water Company Block Option as mentioned in the "Louisville Expansion Development Agreement section 3.05.
2. Copies of any and all language to become part of the "Louisville Expansion Development Agreement" marked reserved as found in the following sections:
I am also requesting the following information with regards to any and all Louisville development agreements and/or proposals for gambling and or proposals including the Center City Project:
1. Copies of all development agreements and/or proposals for gambling and/or gaming entertainment operations.
2. Copies of any and all agreements and/or proposals to aid or facilitate the passage of any Louisville Metro Ordinance relating to gaming (i. e., table games, slot machines, etc).
Having received no response to his request, Mr. Sherry initiated the instant appeal. After receipt of notification of the appeal, Paul Guagliardo, Assistant Jefferson County Attorney, provided this office with a response to the issues raised in the appeal. In his response, he advised in relevant part:
Regarding the above-styled appeal, I have been advised that on October 22, 2008, Mr. Sherry picked up all the materials requested in his open records request. He was also informed as to which records did not exist.
The response of Louisville-Jefferson County Metro Government indicates that Mr. Sherry was provided with copies of records responsive to his request. 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." Accordingly, since Mr. Sherry has been provided with copies of records responsive to his request, the issue as to access to these records is moot and no decision will be rendered in this regard. 06-ORD-253.
In addition to the above, the agency advised Mr. Sherry that some of the records he had requested did not exist. 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. Louisville-Jefferson County Metro Government discharged its duty under the Open Records Act by affirmatively so advising. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
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.