Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Art Anderson appeals the alleged failure of the McCreary County Clerk to respond to his June 21, 2014, request for "a copy of Coy New's will . . . ." The County Clerk advises that his office has no record of receipt of Mr. Anderson's request and no record responsive to the request. He explains that Mr. New died in February 2014 and "to date there is no will recorded for Coy New in the McCreary County Clerk's Office." 1
KRS 61.880(1) states that "upon any request for records made under KRS 61.870 to 61.884," a public agency must "notify in writing the person making the request, within the three [business] day period, of its decision" to honor or deny the request. Thus, an agency is legally obligated to respond to a written request for records upon actual receipt of such a request. 14-ORD-159, p. 1. The McCreary County Clerk indicates that he has no record of receipt of Mr. Anderson's request. In the absence of conclusive proof that the County Clerk received the request, such as a certified mail receipt and proof of service confirming mail delivery or a fax cover sheet confirming successful fax transmission, we cannot resolve the factual dispute between these parties. 02-ORD-1 (agency cannot be faulted for failure to respond to request where no proof of delivery exists); compare, 09-ORD-060 (agency violated Open Records Act by failing to respond to requests whose delivery was verified by certified mail receipt and fax confirmation sheet). Id. at 2.
The McCreary County Clerk also asserts that no record responsive to Mr. Anderson's request exists within his office. He offers a plausible explanation for the nonexistence of the record. The County Clerk cannot produce records that do not exist. We adopt the reasoning found in 11-ORD-014, a copy of which is attached, in concluding that the County Clerk did not violate the Open Records Act in denying Mr. Anderson's request on the basis of the nonexistence of Mr. New's will as long as he or his staff made "a good faith effort to conduct a search using search methods that could reasonably be expected to produce" the will. 11-ORD-014, p. 5; see also 11-ORD-037 and 14-ORD-166.
Either party may appeal this decision 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.
Footnotes
Footnotes
1 Mr. Anderson enclosed "$ 1.00 estimated to cover the cost of copying and postage." We trust that the county clerk refunded this money to him.