Opinion
Opinion By: Andy Beshear,Attorney General;Sarah Ellen Eads Adkins,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Public Advocacy ("DPA") violated the Open Records Act in denying Tyler McGuire's April 17, 2019, request for a copy of his "entire case file" for case 12-CR-00172. For the reasons that follow, though DPA committed a procedural violation, we conclude that DPA's denial did not substantively violate the Open Records Act.
On April 17, 2019, Tyler McGuire submitted an open records request to DPA for his entire case file, "including all recorded proceedings and work product materials." DPA did not respond and Appellant initiated this appeal on May 6, 2019. On May 10, 2019, DPA responded that the record was "virtually identical" to a previous request from Appellant, which this office had already decided in 19-ORD-057. There, this office upheld DPA's denial of access to records that did not exist.
As a preliminary matter, DPA's failure to respond to Appellant's April 17 request for records constitutes a violation of KRS 61.880(1). In relevant part, that statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
The procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. Thus, DPA procedurally violated the Act by failing to respond to Appellant's request.
As to the substantive issue, we agree with DPA that this office previously resolved the precise issue in this appeal and the analysis contained in 19-ORD-057 is controlling on the facts presented; a copy of this decision is attached hereto and incorporated by reference. As held in that opinion, "[t]he Attorney General has consistently recognized that a public agency cannot provide a requester with access to nonexistent records or those which it does not possess." Id.
Although DPA's initial failure to respond constitutes a procedural violation, we affirm DPA's subsequent and substantive response denying Appellant's request for nonexistent records.
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.