Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department for Fish and Wildlife Resources violated the Open Records Act in its disposition of Mark Nethery's December 4, 2009, request for documents related to turkey breeding cycles. For the reasons that follow, we conclude that the Department's response was procedurally deficient but substantively correct.
Mr. Nethery's request, which was submitted in person, sought inspection of "Any & All Documents pertaining to the Turkey Restoration regarding the work of George Wright." A clarification added in another handwriting, initialed by Mr. Nethery, specified: "Any breeding cycle documents." A letter was sent to Mr. Nethery that same day by Records Custodian Sharon R. Sparrow. She identified George Wright as a former employee of the Department and stated:
We are in the process of gathering any responsive documents and will make those available to you as soon as reasonably possible. I will contact you when the documents are ready with an estimated cost of reproduction. If you decide to review the documents gathered, we will set up a time when you can come review the documents at our office.
Having received no further response as of January 4, 2010, Mr. Nethery initiated an appeal to this office.
On January 8, 2010, Sharon R. Sparrow sent a final response to Mr. Nethery's request, advising him that
[a]n exhaustive search of existing files from Mr. Wright's tenure resulted in no specific documents related to research efforts concerning the breeding cycle of wild turkeys in the Commonwealth. The great majority of Mr. Wright's research efforts were concentrated on a survival study which took place in western Kentucky from 1995-2002. During that study, KDFWR personnel captured and radio collared 526 male wild turkeys in efforts to estimate survival during the spring hunting season. As no females were radio collared, research efforts did not involve estimates of nesting or incubation periods. Likewise, gobble counts supervised during Mr. Wright's tenure served only as an index for turkey density, rather than a mean to estimate peak gobbling periods for males.
Three days later, Deputy General Counsel Catherine York of the Tourism, Arts and Heritage Cabinet added the following information in response to Mr. Nethery's pending appeal:
The official Turkey Restoration period when the Department trapped and released birds began in 1978 and ended in 1997. Further, George Wright, now deceased, retired from the Department in 2002. Any breeding cycle documents created by him would have been in excess of seven years old. ? Ultimately, no responsive documents could be located.
In response to a question posed by this office, Ms. York stated in subsequent correspondence on January 25, 2010:
Most documents created by the Department would not be required to be maintained in excess of seven years. Of those documents that have a longer retention period, we have identified five series of documents which might have contained responsive information if it existed:
I believe that # 3-5 are electronic subsets of # 1-2. All documents in these series are currently maintained permanently and the majority have not been transferred to Libraries and Archives. These files were thoroughly searched by our biologists for responsive documents. We further asked Lynn Garrison, who has been with the Department for over 30 years, if he was aware of any documents. He was not aware of any documents but he assisted in the search for documents. No responsive documents were located.
Ms. York provided documentation of the Department's communications with the Department for Libraries and Archives verifying that no responsive records were found in that agency's possession.
Procedurally, we must find the Department violated the Open Records Act with regard to the content of its initial response. The December 4 letter, while stating that the Department was "in the process of gathering any responsive documents," failed to meet the requirement of KRS 61.872(5) that "a detailed explanation of the cause" be given for any delay in excess of three working days. We are unaware of any communications to Mr. Nethery between December 4 and January 8 that would have fulfilled this requirement, and therefore conclude that this omission constituted a procedural violation.
It does appear, however, that the Department conducted a thorough and diligent search and no responsive documents were found. 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. In general, it is not our duty to investigate in order to locate documents which the public agency states do not exist. The information provided by the Department, that Mr. Wright's studies were concerned with turkey density but not breeding cycles, is a reasonable explanation of why no records responsive to Mr. Nethery's request were created. Accordingly, the Department did not substantively violate the Open Records Act.
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.
Mark NetheryCatherine York, Esq.Sharon R. Sparrow