Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Summary : Transportation Cabinet's unsuccessful search for all information relating to a boat identified by registration number, using search method specified by requester, and its consequent inability to provide information, did not violate the Open Records Act.
Open Records Decision
Buster Chandler appeals the Kentucky Transportation Cabinet's disposition of his November 3, 2014, request for "an alpha search" for "all information" on a boat identified by registration number. The Cabinet denied Mr. Chandler's request on January 28, 2015, advising him that his November 2014 request never reached its offices and providing him with the correct mailing address. Continuing, the Cabinet notified Mr. Chandler that an alpha search for information relating to the boat yielded no results. The Cabinet explained that it "found no evidence of a boat registered in the state of Kentucky bearing" the specified registration number and concluded that it had no documents to provide. We received no subsequent correspondence from Mr. Chandler questioning the Cabinet's position.
"The Open Records Act requires the agency" that is the recipient of an open records request "to make all reasonable efforts to locate records responsive to the requester's application."
City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 855 (Ky. 2013). In the vast majority of open records cases, the adequacy of the agency's efforts are measured by the standard established in 95-ORD-96. There, the Attorney General determined that it is "incumbent on an agency to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." 95-ORD-96, p. 7 citing
Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978).
Mr. Chandler specified the type of search he wished the Transportation Cabinet to conduct in order to locate "all information" relating to the boat he identified by registration number. Upon receipt of Mr. Chandler's request, as an attachment to this office's notification of his open records appeal, the Cabinet conducted a search as specified. That search yielded no results. The Cabinet promptly notified Mr. Chandler that no boat registered in Kentucky bore the registration number he provided, and that, therefore, no responsive records exist. The Open Records Act requires the Transportation Cabinet to do no more. The Cabinet did not violate the Open Records Act in denying Mr. Chandler's request based on the nonexistence of the records sought. 02-ORD-163.
We are not prepared to find a violation of the Act based on the Cabinet's purported failure to respond to a request that may or may not have reached it. On numerous occasions this office has acknowledged its inability to "resolve a dispute concerning actual delivery and receipt of a request." See, e.g., 03-ORD-224; 11-ORD-012. Given the absence of proof supporting Mr. Chandler's claim that he mailed his request to the Cabinet and that the Cabinet received the request, we make no finding relative to his allegation that the Cabinet violated KRS 61.880(1) by failing to respond to his request.
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.