Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Police (KSP) violated the Open Records Act in responding to Sarah Teague's October 19, 2017, open records request for records of requests for the return of a videotape. For the reasons stated below, we find no violation of the Act.
Ms. Teague's letter to the KSP custodian of records stated as follows:
I am making an Open Records request for all records of James Allen's requests to KSP for return of his videotape which was used to identify Marvin "Marty" Dill as the suspect in the abduction of Heather Danyelle Teague on 8/26/95. Please include copies of all letters or any other form of request Mr. Allen made for the tape. Please include all of KSP's replies.
Please include the record showing how they were sent and the date (US mail, hand delivered, registered mail, etc.)
Please include the records which would show to whom they were sent (Commander of Post 16, Commissioner Sanders, etc.)
Ms. Teague mentioned Mr. Allen's date of death, which was October 9, 2017. KSP responded on October 23, 2017, by providing five pages of records.
Ms. Teague's appeal was received in this office on November 9, 2017. She alleges that she was given letters sent by James Allen on February 17, 2017, and March 1, 2017, but not letters he sent on September 1, 2016, and March 16, 2017. She further complains that "KSP also failed to include records of many phone conversations Allen had with Post 16 personnel where he asked for and was denied his tape. "
On November 14, 2017, KSP responded to this appeal, stating as follows:
Upon receipt of the Appellant's appeal and further clarification as to the date(s) of possible correspondence between Mr. Allen and the Kentucky State Police, we were able to locate two additional letters from Mr. Allen sent to the Kentucky State Police. A copy of those letters are attached to this response and have been sent to the Appellant. There were no written responses to these letters from the Kentucky State Police to Mr. Allen, thus the Kentucky State Police cannot produce these records.
The Appellant also seeks records of phone conversations between Mr. Allen and Kentucky State Police Post 16 personnel. Please be advised that any phone conversation that may have occurred between Mr. Allen and Kentucky State Police personnel was not recorded, thus there are no records that can be provided of any audio of any phone conversation.
Since the two additional letters complained of have now been provided to Ms. Teague, and no other such letters have been alleged to exist, this appeal is moot as to those records. 13-ORD-001; 04-ORD-046; 03-ORD-087; OAG 91-140.
As to the nonexistent responses to the letters and unrecorded phone conversations, 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. In light of KSP's explanation that recordings of phone calls and responses to Mr. Allen's letters were never created, and in the absence of any evidence that they were created or any legal requirement that they be created, we find no violation of the Open Records Act.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.