Opinion
Opinion By: Jack Conway,Attorney General;Matt James,Assistant Attorney General
Open Records Decision A
The question presented in this appeal is whether the Office of the Attorney General ("OAG") violated the Open Records Act in not providing documents which did not exist. We find that OAG did not violate the Open Records Act in not providing documents which did not exist.
America Rising LLC ("America Rising") submitted an open records request to OAG on May 6, 2015. America Rising requested "any and all logs or databases of public records requests made to the Office of Attorney General under Jack Conway from January 2008 to May 2015." OAG responded on May 13, 2015, stating that "our office does not create a log or database of open records requests. Furthermore, our office's retention schedule requires our office to maintain open records for three (3) years then destroy. . . . Therefore, we would not have any records related to open records requests from January 2008 through April 2012."
America Rising initiated this appeal on Sept. 24, 2015, stating:
America Rising does not challenge the AG's determination that it destroyed certain records covered by the request. However, we do question how the AG can meet its legal responsibilities under the Open Records Act without tracking requests in some fashion. Indeed, in response to a recent dispute with another requester, a spokesperson for the AG informed The Washington Free Beacon that three AG employees monitor a fax machine "and log all open records requests and open records appeals received." 1 . . . In light of this information, the AG's response to America Rising's request is even more suspect and should be reconsidered.
OAG responded to the appeal on Oct. 22, 2015, stating:
The Office of Attorney General tracks open records requests received through an internal computer system, Agenda. When the AG spokesperson stated that employees log open records requests, she was referring to the requests being input into Agenda. Agenda, however, does not provide a mechanism to print or electronically copy any log, database or spreadsheet that could be provided to the requester. . . .
The Office of the Attorney General can, however, print a "summary of correspondence received and action taken" ("Cover Page") for each open records request received by our office between May 11, 2012 and present. While these Cover Pages do not technically constitute a "log" or "database" the Office of the Attorney General has offered to provide these Cover Pages . . . .
"A public agency cannot afford a requester access to a record that it does not have or which does not exist." 14-ORD-027. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 14-ORD-188. OAG does not create a single log or database of all open records requests. To the extent America Rising's request can be construed as asking for any log or database of all open records requests, OAG did not violate the Open Records Act in not providing documents which did not exist. To the extent that America Rising's request may be interpreted as asking for any documents reflecting receipt of any open records requests, OAG has provided those documents, and the appeal is now moot as to those documents. 40 KAR 1:030 § 6.
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.
Footnotes
Footnotes
1 Lachlan Markay, Group Accuses Kentucky of Hiding Emails Showing EPA Collaboration , WASHINGTON FREE BEACON, Sept. 16, 2015, http://freebeacon.com/issues/group-accuses-kentucky-of-hiding-emails-sh….
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