Request By:
Ms. Susan Bush, Director
Division of Waste Management
Natural Resources Cabinet
18 Reilly Road
Frankfort, KY 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; V. Lynne Schroering, Assistant Attorney General
Our office has received an open records appeal from Kit Wagar, a reporter for the Lexington Herald-Leader . The Herald-Leader contends that your agency is not following our office's advice in OAG 90-89. Mr. Wagar contests your October 24, 1990 letter regarding the following four issues:
1. How, when or why the division adopted its policy of withholding intergovernmental review endorsements because of a county's failure to pursue a solid waste management system;
2. How or why the division abruptly scrapped the same policy sometime between September and November, 1989;
3. What the division's policy was on when to endorse or not endorse projects in the intergovernmental review process; and
4. Whether the policy was ever modified before it was scrapped in late 1989.
In your October 24, 1990 letter you stated that the Division of Waste Management has no records that document the above-requested issues. I contacted your office on November 26, 1990 and questioned you at length regarding whether your agency had documentation regarding these policies and you informed me these documents do not exist.
OPINION OF THE ATTORNEY GENERAL
A public agency cannot furnish access to documents which it does not have, and a request for documents which a public agency does not have is moot. OAG 88-44.
Your division should have specifically informed Mr. Wagar that these documents did not exist in your earlier letter of January 17, 1990. Obviously, an agency cannot disclose records which are not in existence.
Pursuant to KRS 61.880(2) a copy of this opinion is being sent to Mr. Kit Wagar, and both of you may challenge this opinion in circuit court.