Opinion
Opinion By: Jack ConwayAttorney General;Amye L. BensenhaverAssistant Attorney General
Open Records Decision
Lawrence Trageser appeals the Spencer County Fiscal Court's denial of his September 3, 2014, request for "the list of names on a work schedule for the Spencer County Fiscal Court booth represented at the Kentucky State Fair [, including] all persons scheduled to work the booth, the specific times scheduled, and the real time worked by each individual scheduled. " The fiscal court denied Mr. Trageser's request in a response inexplicably dated August 19, 2014, 1 advising him that no responsive record exists. The fiscal court explained:
Per Karen Spencer, the individual that coordinated the times for the volunteers, the schedule has been destroyed. Mrs. Spencer states that the names and times were hand written on paper and when she cleaned her vehicle out, they were thrown away. As the documents were simply work papers and notes made by Mrs. Spencer to help her ensure that the booth had sufficient coverage, there was no need nor necessity to keep the notes after the Kentucky State Fair concluded. The individuals were all nonpaid volunteers.
In supplemental correspondence, the fiscal court advanced the argument that because the list constituted "Information and Reference Material," as described in Records Series L4956 of the General Records Retention Schedule for Local Governments, it was destroyed at the close of the state fair because it was no longer needed, and it properly denied Mr. Trageser's request on the basis of the list's nonexistence. We agree with the fiscal court.
The Spencer County Fiscal Court cannot produce for inspection and copying a record that does not exist, and, when this is the case, it discharges its duties under the Open Records Act by issuing a timely written response in which it notifies the requester that no responsive record exists and why.
Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (recognizing that "when it is determined that an agency's records do not exist, the person requesting the records 'is entitled to a written explanation for their nonexistence' "); citing 10-ORD-078; see also 12-ORD-192. The fiscal court did so in its erroneously dated response, advising Mr. Trageser that the records he sought "do not exist" and that they were "thrown away" at the conclusion of the fair. Having done so, the fiscal court complied with the requirements of the Act and sound records management practice.
Mr. Trageser characterizes the record at issue in this appeal as either "Official Correspondence" which must be retained permanently under Records Series L4954, or "Routine Correspondence" which must be retained for two years, then destroyed, under Records Series L4955. Our discussions with representatives of the Kentucky Department for Libraries and Archives? Public Records Division, as well as our independent legal analysis, yield a different result. Because the record did not "document the major activities, functions, events, and programs" 2 of the Spencer County Fiscal Court, or even "the day-to-day general operations 3 of the fiscal court, we believe it was neither "Official Correspondence" nor "Routine Correspondence, " respectively. Instead, the record constituted "Information and Reference Material," because it "aid[ed] or support[ed] the conduct of official agency business, but [was] not critical to continued operations." 4 It was in the nature of a "log and other tracking tool[]" as delineated in the contents of Records Series L4956. Mr. Trageser's comments about potential liability arising from operation of the state fair booth are well-taken but are not sufficient to override the record's transitory value and necessitate permanent or even two year retention. We therefore affirm the Spencer County Fiscal Court's denial of Mr. Trageser's September 3, 2014, open records request based on the nonexistence of the requested record which was properly destroyed when no longer needed.
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. Trageser does not assert that the Fiscal Court's response was untimely. In the absence of a challenge to the timeliness of the response, or an explanation for the apparent discrepancy, we are not prepared to assign error.
2 Records Series L4954.
3 Records Series L4955.
4 Records Series L4956.