Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that although the Office of the State Budget Director violated KRS 61.880(1) in failing to respond in writing, and within three business days, to Mark Sommer's January 27, 2010, request for records, 1 the OSBD cannot be said to have violated the Act in denying that request insofar as neither the Finance and Administration Cabinet nor the OSBD "maintain any records responsive to [his] request." That request for "any memorandum or writing otherwise entitled or addressing the subject matter of, Government Operations, Appropriations Not Otherwise Classified-Judgments, used for or in connection with the Commonwealth's budget process, dated between 2006 and current" mirrored an earlier request addressed to the Finance and Administration Cabinet. It is the decision of this office that 07-ORD-188, a copy of which is attached hereto and incorporated by reference, is dispositive of the issue on appeal. In that decision, the Attorney General applied the Kentucky Supreme Court's holding in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005) and concluded that in the absence of a prima facie showing by the requester that the agency maintained a record that was responsive to this request, the agency could not be said to have violated the law in denying a request on the basis that it maintained no responsive record.
In the appeal before us, the OSBD belatedly advised Mr. Sommer that it maintained no document responsive to his request. In a letter addressed to this office that included a copy of the response, the OSBD advised that its earlier search of the Cabinet's and the OSBD's records yielded no results. Mr. Sommer's presents no evidence supporting his apparent belief that a record matching his description exists, and our review of the records retention schedule for the OSBD does not confirm its existence. Accordingly, we find that the OSBD cannot be said to have violated the substantive provisions of the Open Records Act, but that its failure to respond to the request constituted a procedural violation of the 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 proceeding.
Mark F. SommerEllen HesenMary Lassiter Jeff Mosley
Footnotes
Footnotes
1 The OSBD acknowledges its error in this regard, noting that it might have been occasioned by the similarity of Mr. Sommer's January 27, 2010, request to his December 13, 2009, request to the Finance and Administration Cabinet to which the Cabinet responded on January 13, 2010. Unfortunately, the Cabinet's response to the latter request was also untimely.
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