Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether DeAM-RON Building Systems, Inc., a manufacturer of prestressed concrete, violated the Open Records Act in the disposition of James David Adkins' request for records relating to his former employment there. For the reasons that follow, we find that De-AM-RON did not violate the Act.
In his undated request, Mr. Adkins stated: "I am requesting copies of my time sheet and or verification of time worked on the days of 1/23/2006 and 1/24/2006." Mr. Adkins, an inmate at Green River Correctional Complex, initiated this appeal on December 16, 2008, stating that he had received no response to his request for records. Because Mr. Adkins' initial request was undated, we are unable to determine whether DeAM-RON failed to respond within three (3) business days pursuant to KRS 61.872 or whether the Attorney General has jurisdiction over this appeal under KRS 197.025(3). In view of DeAM-RON's response to this appeal, however, Mr. Adkins would not be entitled to relief even if this office had jurisdiction.
DeAM-RON's response, submitted on December 30, 2008, by Karen Collier, Office Manager, states that "I checked all of our company's records for the time period in question. We have no records of him working on the days of January 23, 2006 or January 24, 2006." Ms. Collier further advised that DeAM-RON is a private company that receives no public funding and that employee time sheets are kept on a daily basis, as opposed to weekly or monthly.
Although in other circumstances we might be inclined to request documentation of DeAM-RON's funding sources to determine whether it is a "public agency" within the meaning of KRS 61.870(1)(h), the fact that DeAM-RON has no records responsive to Mr. Adkins' request is dispositive of this appeal. Even supposing Mr. Adkins' former employer to be a public agency, it cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. An agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which a public agency states do not exist. We therefore conclude that no substantive violation of the Open Records Act occurred.
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 proceedings.
Distributed to:
James David Adkins, #217329DeAM-RON Building Systems, Inc.