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 office of the Spencer County Attorney violated the Open Records Act in the disposition of Craig Stone's request dated October 9, 2014, in which he sought copies of "Written Proof of Receipt from the Mount Eden Fire Department's current board membership showing that have each [sic] received the "Your Duty Under The Law" & "Managing Public Records" within 60 days of their appointment or election." For the reasons that follow, we find no violation of the Act.
On the same day the request was made, Office Manager Treasure Bryant responded that the Spencer County Attorney's office "is the official custodian for records maintained by the Spencer County Fiscal Court. The Mt. Eden Fire Department is a separate taxing district and all open records requests must be submitted directly to them." In his appeal dated October 14, 2014, Mr. Stone points out that KRS 65.055(1)(a) requires the written materials to be distributed to "boards of special districts" located within a county, while subsection (2) provides: "County judge/executives and mayors shall require signatory proof that each person identified in subsection (1) of this section has received the written information, shall maintain documentation of receipt on file , and shall certify to the Office of the Attorney General that the written information has been distributed as required." (Emphasis added.) Thus, the county government, rather than the fire district, is required to keep the proof of receipt on file.
In a response to this appeal dated October 27, 2014, Spencer County Attorney Ruth A. Hollan acknowledges the provisions of KRS 65.055(2), but states that the requested records "are not in the possession of the Spencer County Judge Executive's Office, as no such records were received as required by KRS 65.055 ." She indicates that Deputy Judge/Executive Karen Curtsinger sends a mass e-mail each year to elected officials and heads of all boards in the county, which includes the instructional materials and the proof-of-receipt form; yet "she does not have any signed forms from the Mt. Eden Fire Department's current board membership. " Ms. Hollan states that the County Judge/Executive's office is currently "attempting to correct the issue" by contacting the current board members.
It does appear from the record that the signed proof-of-receipt forms have not, to date, been obtained from the Mt. Eden Fire Department as required by KRS 65.055. This does not, however, constitute a violation of the Open Records 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. We trust that Mr. Stone's appeal has sufficiently brought the matter to the county's attention that compliance with KRS 65.055 will be forthcoming. In terms of the Open Records Act, we do not find a violation.
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.