Request By:
Mr. Jack C. Blanton
Vice-Chancellor for Administration
110 Administration Building
University of Kentucky
Lexington, Kentucky 40506-0032
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Christian M. Christensen has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his October 29, 1990, request to inspect certain records in the possession of the University of Kentucky. Among the records requested were minutes of a meeting of tenured faculty members conducted by Dr. Fred Knapp in November, 1986. Mr. Christensen indicates that he was present at, and participated in, this meeting, that minutes were taken but that copies were not provided to the faculty.
You denied that portion of Mr. Christensen's request in a memorandum dated November 1, 1990. At numerical paragraph (4), you stated:
If minutes exist as described above, it would be denied on the grounds such contain information which could be described as '[p]reliminary drafts, notes, . . . other than correspondence which is intended to give notice of final action of a public agency; ' and '[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended' (KRS 61.878(g)(h)). [sic]
In response to Mr. Christensen's other requests, you either furnished copies or indicated that no such document exists.
Mr. Christensen asks that we review your denial of the cited portion of his request to determine if your actions were consistent with the Open Records Act. He asks that we limit our review to the question whether you are required by the Open Records Act to advise the requester that the records either do or do not exist. In support of his position that the custodian of records must state in his response whether the record exists, he cites OAG 86-38 and OAG 90-69. We concur with Mr. Christensen, and conclude that your response to his request was deficient to the extent that you did not properly advise him whether the documents exist.
OPINION OF THE ATTORNEY GENERAL
As Mr. Christensen correctly observes, this Office has repeatedly held that a public agency's response is insufficient under the Open Records Act if it fails to advise the requesting party whether the document exists. OAG 86-38; OAG 90-26; OAG 90-69. In OAG 86-38, at p.3, we construed the obligation of the agency relative to a request to inspect documents, noting:
KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested. If the documents exist and inspection is denied, you should list each document which the city will not permit the requesting party to inspect and state how the exception to public inspection relied upon applies to the particular document withheld from inspection.
Echoing this view, in OAG 90-26, at p.4, we categorically stated, "If a record of which inspection is sought does not exist, the agency should specifically so indicate."
This Office has recognized that an agency obviously cannot furnish records which it does not have in its possession. OAG 83-111; OAG 87-54; OAG 88-5. We have also recognized that it is not our duty to investigate in order to locate documents which the requesting party maintains exist, but which the public agency states do not exist. OAG 86-35. However, we are unable to discharge our duty under the open records statutes, i.e., to review an agency denial and issue a written opinion stating whether the agency acted properly, if the agency does not provide an adequate response to the request.
Accordingly, we find that unless the University is unable to determine whether the minutes exist, by virtue of Mr. Christensen's failure to identify with reasonable particularity the meeting at which the minutes were taken, it must advise him whether they exist. If the University wishes to deny inspection, it must cite the specific exception authorizing nondisclosure, and state how that exception applies to the records requested. KRS 61.880(1).
As required by statute, a copy of this opinion will be sent to Mr. Christian M. Christensen. The University has the right to challenge it by instituting proceedings for injunctive or declaratory relief within 30 days in the appropriate circuit court pursuant to KRS 61.880(5).