Request By:
Mr. Claude Martin
City Clerk
City of Jeffersonville
P.O. Box 127
Jeffersonville, Kentucky 40337
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Leo Daniel has appealed to the Attorney General pursuant to KRS 61.880 on the basis of what he terms is "the decision of the former city of Jeffersonville city clerk, Ms. Peggy Coburn. This decision of hers is a continuing effort to deny the public access to records of the city."
This office has not been furnished with a copy of the initial request of Leo Daniel but the city obviously received such a request as you replied to Mr. Daniel in a letter dated January 15, 1988. In that letter you advised Mr. Daniel as follows: "I regret to inform you that the 1987 budget you requested has not been turn (sic) over to me by the former city clerk, Peggy Coburn. As soon as the budget is available you may then examine it."
Copies of two other letters have been furnished to this office. One of them is your letter to Peggy Coburn, dated January 5, 1988, in which you demanded that she return to the city all items in her possession that are the property of the city. The second letter is a letter to Peggy Coburn from Benjamin J. Hays, Esq., of Winchester, dated January 18, 1988, in which Mr. Hays asked Peggy Coburn to return certain city property in her possession to the city by January 20, 1988.
In his letter of appeal to this office Mr. Leo Daniel makes reference to OAG 86-20 and OAG 87-54, two prior opinions of this office pertaining to appeals from decisions of Peggy Coburn relative to requests to inspect public records.
OPINION OF THE ATTORNEY GENERAL
When a public agency is faced with a request to inspect public documents it must answer two basic questions. The first concerns whether the public agency has the documents in question. If it does have them it must then advise the requesting party whether the documents are subject to public inspection or whether it will utilize one of the statutorily recognized exceptions to public inspection and refuse to permit public inspection.
In the situation with which this opinion is concerned you advised the requesting party in writing that the records requested were not available because they had not yet been turned over to you by the former City Clerk, Peggy Coburn.
The city undoubtedly has some legal obligation to attempt to recover its records and documents from the former city clerk. An attempt to recover such material has been initiated by the city as evidenced by the letter of January 5, 1988, from yourself to Peggy Coburn and the letter of January 18, 1988, from Attorney Hays to Peggy Coburn.
This opinion, however, is limited to dealing with the Open Records Act (KRS 61.870 to KRS 61.884) and from the standpoint of that enactment the public agency either has the documents or they do not have them. The Open Records Act, in KRS 61.991(2)(a), does provide a penalty if a public official willfully conceals or destroys any record with the intent to violate the provisions of the Open Records Act. There is no proof, or even an allegation that the missing records in this situation were destroyed or concealed for that reason but if you have evidence that such was the case you should contact the local prosecutorial authorities.
In conclusion, it is the opinion of the Attorney General that the response of the public agency to the request to inspect public documents that the requested documents are not in the public agency's possession was sufficient and proper as far as the Open Records Act is concerned. A public agency obviously cannot furnish records for viewing and copying which it does not have at the time of the request. See OAG 83-111 and OAG 87-54, copies of which are enclosed.
As required by statute a copy of this opinion is being sent to the requesting party, Mr. Leo Daniel, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).