Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Commonwealth's Attorney for the 53rd Judicial Circuit violated the Open Records Act in the disposition of Lawrence Trageser's October 2, 2015, request for "any and all records reflecting the personnel file of former Assistant Commonwealth Attorney Melanie Carroll [including but] not limited to; complaints, reprimands, investigations, resignation letters and termination letters." For the reasons that follow, we find no substantive violation of the Act.
On the same day Mr. Trageser's request was received, Commonwealth's Attorney Laura L. Witt replied by e-mail: "I received your fax requesting Melanie Carroll's personnel file and I wanted to let you know that I don't keep personnel files. Do you still want me to respond to this request?" Mr. Trageser initiated this appeal on November 9, 2015.
Mr. Trageser's argument on appeal is that the Commonwealth Attorney's office, as a public agency, has a responsibility to maintain personnel files on its former employees. Ms. Witt, in a response dated November 19, 2015, contends that maintaining personnel action records for the office of a Commonwealth's Attorney is the responsibility of the Prosecutors Advisory Council. She states, in pertinent part, as follows:
Trageser alleges that because the documents [ i.e. , a letter notifying PAC of a vacancy and the resignation letter submitted by Ms. Carroll] were located at PAC they must also be maintained at the Office of the Commonwealth's Attorney. However, this is simply not the truth. While Mr. Trageser is entitled to his opinion about whether or not I should maintain personnel files in my office, it is nothing more than an opinion and it is certainly not a legal requirement. . . . It is worth noting that the Office of the Commonwealth's Attorney for the 53rd Judicial District employs three (3) part-time attorneys and two (2) staff members. All employees are at-will and serve at the pleasure of the Commonwealth's Attorney.
KRS 15.700 provides that "a unified and integrated prosecutor system is hereby established with the Attorney General as chief prosecutor of the Commonwealth." KRS 15.705(1) creates the Prosecutors Advisory Council "[f]or the purpose of administration of the unified prosecutorial system." Under KRS 15.705(4), PAC's responsibilities include, but are " not limited to , the preparation of the budget of the unified prosecutorial system of the Commonwealth of Kentucky and the continuing legal education and program development of the unified prosecutorial system of Kentucky." (Emphasis added.) It appears from the record that PAC's role in the "administration of the unified prosecutorial system" under KRS 15.705 includes serving as official custodian of personnel action records for the various prosecutorial offices in the Commonwealth.
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 this case, it has not been shown that the Commonwealth's Attorney had a duty to maintain in her office a separate copy of personnel records for which PAC was responsible under the unified prosecutorial system. Accordingly, we find neither a substantive violation of the Open Records Act nor a deficiency in records management on the part of the Commonwealth's Attorney.
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.