Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Nicholas Circuit Court Clerk violated the Kentucky Open Records Act in failing to issue a written response within three business days of receiving Tommy Withrow's written request for copies of specified "records, documents, materials and items" relating to Indictment Nos. 07-CR-016 and 07-CR-025. Because records in the custody of circuit court clerks are properly characterized as court records, which are not governed by the Open Records Act, rather than public records within the meaning of KRS 61.870(2), the Attorney General has consistently recognized that circuit court clerks are not subject to the provisions of the Open Records Act. Consequently, the Nicholas Circuit Court Clerk cannot be said to have violated the Act in failing to respond upon receipt of Mr. Withrow's request as would otherwise be required by KRS 61.880(1). In our view, 98-ORD-6 is controlling on the facts presented; a copy of that decision is attached hereto and incorporated by reference. 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.
Tommy Withrow, # 211089Sandye Watkins
Footnotes
Footnotes
1 Upon receiving notification of Mr. Withrow's appeal from this office, Sandye Watkins, Clerk, advised this office that Mr. Withrow's request was received on January 27, 2009, and she will copy what she has "in the files and forward [it] to Mr. Withrow." However, Ms. Watkins is "not in possession of some of the items he requests." Even if circuit court clerks were governed by the provisions of the Act, Ms. Watkins' inability to produce nonexistent records or those not in her possession would not constitute a violation. A public agency is not required to produce for inspection or copying nonexistent records or those which it does not possess nor does a public agency have to "prove a negative" in order to refute a claim that certain records exist. 07-ORD-190, p. 7. Any issues related to records that are being provided to Mr. Withrow would be moot per 40 KAR 1:030, Section 6 if the Act did apply here.