Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Georgetown-Scott County Planning Commission ("Commission") violated the Open Records Act in the disposition of Kenneth Tracy's April 23, 2018, request for recordings of certain Planning Commission and Executive Committee meetings. For the reasons that follow, we find no violation of the Act.
Mr. Tracy requested three items from the Commission, two of which are still at issue. The first item was a copy of "all minutes/ videos/ tapes" of the Commission's Executive Committee meetings from May 2017 through April 2018. In a response dated April 26, 2018, Director Joe Kane provided Mr. Tracy with copies of all minutes except the April 2018 minutes, which were not yet approved, and advised Mr. Tracy that no audio or video recordings were made of those meetings. With the response to this appeal on May 14, 2018, Mr. Kane forwarded Mr. Tracy the April 2018 minutes, which were approved on May 13, 2018. We therefore find this appeal moot regarding the minutes.
As for "videos/ tapes, " 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. While Mr. Tracy argues on appeal that there must be recordings made because no one is present to take minutes, Mr. Kane responds that the minutes are taken by "our office manager" during the meetings. Accordingly, we find that the Commission has properly responded to this portion of the request.
The second item at issue is a copy of the video recording of the Commission's February 2018 meeting. In the April 26 response, Mr. Kane stated that "[t]here was a scratch on the DVD for that meeting and it is unreadable." On appeal, Mr. Tracy argues that the video must exist on a hard drive in order to be burned to DVD. Mr. Kane has responded that "the Fiscal Court recording clerk" records the meetings in the fiscal court room with equipment to which the Commission does not have access. He has recommended that Mr. Tracy contact the Scott County Fiscal Court to obtain a copy of the video from the hard drive. 1
In a follow-up letter received on May 29, 2018, Mr. Tracy replied that he contacted the fiscal court's recording clerk and was told that she does not record the Commission's meetings. We are unable, in the context of an open records appeal, to resolve this factual discrepancy as to who is responsible for recording these meetings. Ultimately, we cannot reject the Commission's representation that it is not the agency which records and keeps the video of its meetings, since Mr. Tracy's information does not contradict that assertion. A public agency cannot provide a copy of a record that it does not have. Accordingly, we find no violation based on the record before us.
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 proceedings.
Footnotes
Footnotes
1 In his response to the appeal, Mr. Kane mentioned the existence of an audio cassette of the February 2018 meeting. That recording is not the subject of the present appeal because it was not requested by Mr. Tracy.