Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the responses of the Transportation Cabinet to several open records requests made by Gerald T. Kemper for certain of the Cabinet's records relating to Ad Rack, Inc. As the result of several requests and subsequent responses and apparent cooperation between the parties, Mr. Kemper's appeal has been refined to address only the Cabinet's denial of his request for a "copy of the advertisement for the Request for Proposal for the placement of kiosks in rest areas."
After receipt of Mr. Kemper's July 11, 1998 letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal" to the Cabinet, along with Mr. Kemper's letter. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ed Roberts, Commissioner, Department of Administrative Services and Custodian of Records, with the Cabinet, provided this office with a subsequent letter to Mr. Kemper, dated July 24, 1998, in which Mr. Roberts stated:
Enclosed is a copy of the memorandum dated September 21, 1993 regarding the following:
1. A copy of the advertisement for the Request for Proposal for the placement of kiosks in rest areas.
This information, as requested in your open records request of June 12, 1998, was provided by the Division of Professional Services. Please be advised that this Division has reported that the actual newspaper advertisement was not retained. However, you may wish to contact either The Courier-Journal or The Louisville Defender regarding this advertisement.
We are asked to determine whether the response of the Cabinet was consistent with the requirements of the Open Records Act. For the reasons which follow, we conclude that the response of the Cabinet was consistent with the Act.
This office has consistently recognized that a public agency cannot provide a requester access to a record or document which it does not have or which does not exist. 98-ORD-35; 96-ORD-190; 96-ORD-163. The Cabinet, in its response to the letter of appeal, the Cabinet informed Mr. Kemper that it did not retain a copy of the advertisement which he sought and advised him to contact The Courier-Journal or The Louisville Defender regarding a copy of the actual advertisement published by the newspapers. This office has no reason to doubt the Cabinet's response that it does not have the requested record. Accordingly, we conclude that the response of the Cabinet that it could not provide a copy of a record which it did not have, was consistent with the Open Records Act and prior decisions of this office.
Nevertheless, the Cabinet has an obligation relative to proper records management and retention. Whether it was required to maintain a copy of the requested document presents a records management issue. KRS 61.8715 provides:
To ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of . . . [KRS 61.870, et seq., the Kentucky Open Records Act, KRS 171.410 to 171.740, relating to public records management, and KRS 61.940 to 61.959, relating to strategic planning for computerized information systems.]
The General Assembly has thus recognized an "essential relationship" between the intent of the Open Records Act and statutes relating to proper records management and maintenance. KRS 61.8715. With these observations in mind, we have referred this matter to the Department for Libraries and Archives for additional inquiries as the Department deems appropriate
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.