Opinion
Opinion By: Jack Conway,Attorney General;James M. HerrickAssistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Mount Eden Fire Protection District violated the Open Records Act in its disposition of the open records request of Craig Stone. In his request dated September 23, 2014, Mr. Stone requested "[a]ll documents, meeting minutes, and email correspondence that relate to the bidding and rebuilding of the fire house." He initiated an appeal on October 3, 2014, alleging that he had received no response.
On October 15, 2014, the District's attorney, James G. Hodge, responded to the appeal and attached a copy of an undated response to Mr. Stone's open records request, which stated: "On behalf of above organization, I am writing to acknowledge receipt of your request for their records regarding data relating to the bidding on rebuilding of their fire house. So far, no such data exists, but we expect it in the near future and will be glad to furnish it to you."
Since the response is undated, we cannot conclusively determine whether it was issued within the time period of three business days imposed by KRS 61.880(1). If it was not sent to Mr. Stone within three working days after the District's receipt of his request, then the District committed a procedural violation of the Open Records Act.
Substantively, we find no violation of the Act. 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. While Mr. Stone is free to make a new request for records that are subsequently created, we find that the District did not violate the Act in its ultimate disposition of his September 23 request. 13-ORD-001.
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.