16-ORD-241
November 16, 2016
In re: Eric Cunningham, Sr./Office of the Jefferson County Attorney
Summary: Office of the Jefferson County Attorney did not violate the Open Records Act where it did not have the requested income tax returns of a private individual.
Open Records Decision
The issue presented in this appeal is whether the Office of the Jefferson County Attorney, Child Support Division, violated the Open Records Act in its disposition of Eric Cunningham’s October 8, 2016, request for “shonda cunninghams incomtax returns for the entire period that this child support case has been active” [sic]. For the reasons stated below, we find no violation of the Act.
On October 11, 2016, Child Support Division Director Angela Anton replied in writing to Mr. Cunningham’s request. She advised that the Division did not have any of Shonda Cunningham’s tax returns, but that in any case they would be confidential under KRS 205.796 as incorporated into the Open Records Act by KRS 61.878(1)(l). Mr. Cunningham initiated an appeal on October 15, 2016, and Ms. Anton submitted a response reiterating the same arguments.
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. Since the Child Support Division did not have the tax returns requested by Mr. Cunningham, we find no violation of the Open Records Act. Under the circumstances, we need not address the application of KRS 205.796.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Andy Beshear
Attorney General
James M. Herrick
Assistant Attorney General
#417
Distributed to:
Eric Cunningham, Sr.
Angela Anton, Esq.