Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Anthony Mattingly initiated this appeal by letter dated June 28, 2015, challenging the disposition by the Boone Circuit Court Clerk of his June 5, 2015, request for "copies of all money orders paid from 2002 to present on the restitution on Case 99-CR-00493" as well as "documentation as to why the payments I have designated to victim, Jerry Adkins have not [gone] to him." 1 Because records in the custody of circuit court clerks are properly characterized as court records, to which the Open Records Act does not apply, the Attorney General has long recognized that circuit court clerks are not subject to the provisions of the Open Records Act; consequently, the actions of the Boone Circuit Court Clerk relative to Mr. Mattingly's request(s) did not violate the Act. 2 The analysis contained in 98-ORD-6, a copy of which is attached hereto and incorporated by reference, is controlling on this issue. "Simply stated, disputes relating to access to court records must be resolved by the court." 98-ORD-6, p. 2.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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. Mattingly argued that the Boone Circuit Court Clerk failed to respond correctly; he further advised that he was enclosing one of three requests that he made. If the agency provided a written response, Mr. Mattingly was required to provide this office with a copy per KRS 61.880(2)(a). Further, this office is only permitted to review the actions of the agency relative to his June 5, 2015, request as he did not provide a copy of the other two. See 40 KAR 1:030, Section 1.
2 Upon receiving notification of Mr. Mattingly's appeal from this office, the Boone Circuit Court Clerk advised this office that, "As a matter of course, it is not our procedure to keep copies of money orders in our Bookkeeping Department." A public agency cannot produce nonexistent records for inspection or copying. The Clerk further indicated that her office does maintain a "Payable Ledger Card and Receipts," copies of which the Clerk mailed to Mr. Mattingly along with copies of all documents in the possession of the agency regarding his payment history, i.e. , all existing documents potentially responsive to his request. Nothing else is required of a public agency under the Open Records Act even if the provisions thereof did apply.