Request By:
Mr. R. Scott Summers, Attorney
Office of the Counsel
Cabinet For Human Resources
275 East Main Street, 4 West
Frankfort, Kentucky 40621
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Ms. Janet L. Bewley has appealed to the Attorney General pursuant to KRS 61.880 your untimely response to her May 16, 1991, request to inspect the desk audit pertaining to her, conducted at her request in April, 1991. You responded to Ms. Bewley's request in a letter dated May 31, 1991, indicating that there was no written document generated as a result of the audit. She asks that we review the Cabinet's response to her request to determine if your actions were consistent with the Open Records Act.
OPINION OF THE ATTORNEY GENERAL
Before proceeding to the ultimate issue in this open records appeal, we direct your attention to KRS 61.880(1), which contains specific guidelines for an agency's response to a request under the Act. 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 records 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.
In addition, KRS 61.880(2) requires that a copy of the written response denying inspection be forwarded immediately to the Office of the Attorney General.
Your response to Ms. Bewley's request was improper, under the Open Records Act, to the extent that you did not reply within three working days. Some eleven workdays elapsed between the date of the request and the date of the response. Allowing for delays in the mail, your response was nevertheless untimely. We urge you to review the relevant provisions to insure that future responses conform to the Open Records Act.
Turning to the issue in this appeal, we find that although you failed to comply with KRS 61.880(1), your response was otherwise proper. This Office has previously recognized that a public agency cannot furnish access to documents which it does not have. OAG 83-11; OAG 87-54; OAG 88-5. A request for such documents is moot. OAG 88-44. 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. As we observed in OAG 86-35, at p.5, "This office is a reviewer of the course of action taken by the public agency and not a finder of documents or possible documents for the party seeking to inspect such documents." We believe this opinion to be dispositive of the instant appeal.
Accordingly, we find that the Cabinet properly advised Ms. Bewley that her request could not be satisfied inasmuch as no such record exists. This appeal must therefore be treated as moot.
As required by statute, a copy of this opinion will be sent to Ms. Janet Bewley, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).