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 Kentucky Council on Postsecondary Education ("CPE") violated the Open Records Act in its disposition of Dr. Bruce Tyler's March 1, 2015, request for records relating to the resignation of Dr. Shirley Willihnganz from her position at the University of Louisville. For the reasons that follow, we find no substantive violation of the Act.
Dr. Tyler's March 1 letter, addressed to President Robert L. King and General Counsel Travis Powell, stated in relevant part as follows:
[D]id you have anything to do with Provost Willihnganz's resignation and did my complaints have anything to do with it? I am requesting any and all records in this regard under the Kentucky Open Records law . Please respond appropriately and directly to this request as required by law. I'd like the reasons, if you played a role in this matter of resignation.
(Emphasis in original.) Although the record does not reflect when the CPE received Dr. Tyler's letter, the only response in the record is dated April 1, 2015. KRS 61.880(1) requires a public agency to make a written disposition of a request for public records within three days, excluding weekends and legal holidays. If the March 1 date represents the approximate date of receipt of Dr. Tyler's request, and if no written response was made until April 1, then the CPE committed a procedural violation of KRS 61.880(1).
The CPE's April 1 response, signed by Travis Powell, read as follows:
Please be advised that as stated previously in earlier correspondence, matters of employment for University of Louisville faculty and staff are under the sole purview of the institution's Board of Trustees. See KRS 164.830(1)(a). As such, CPE has no jurisdiction over these matters and we have no correspondence with the University of Louisville on your employment or Dr. Willi[hng]anz's.
Dr. Tyler initiated an appeal on September 13, 2015. Although he argued that the CPE "simply did not respond at all to my request," Dr. Tyler attached a copy of the April 1 response.
Mr. Powell responded to the appeal on September 22, 2015. He reiterated that the CPE had no involvement with Shirley Willihnganz's resignation and therefore has no records on the subject. He further stated, with regard to Dr. Tyler's question posed in the March 1 letter, that requests for information are outside the scope of the Open Records Act.
We agree that an agency is not obligated to honor a mere request for information under the Open Records Act. 02-ORD-88; KRS 61.870 et seq. Furthermore, 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. In general, it is not our duty to investigate in order to locate documents which the public agency states do not exist. The fact that employment matters at the University of Louisville are the responsibility of the Board of Trustees, and that the CPE did not correspond with the University of Louisville concerning the resignation of Dr. Willihnganz, serves as an adequate explanation for why no responsive records exist. Therefore, we can find no substantive violation of the Open Records Act by the Council on Postsecondary Education.
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 proceeding.