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 is before the Attorney General on appeal from the responses of the Personnel Cabinet and the Finance and Administration Cabinet to the open records requests of Dennis Franklin Janes for copies of documents describing health insurance and prescription medicine coverages provided to state employees who live and work in Jefferson County, Kentucky.
Responding on behalf of the Personnel Cabinet, Daniel F. Egbers, General Counsel and Custodian of Records, advised Mr. Janes that the Personnel Cabinet did not have the records he requested. He further advised Mr. Janes that the custodian of the records he sought was the Finance and Administration Cabinet and referred him to Chastity King, Division of Purchases, Room 376, Capitol Annex, Frankfort KY 40601.
In his letter of appeal, dated May 6, 1999, Mr. Janes indicated he had yet to receive a response from the Finance and Administration Cabinet.
After receipt of Mr. Janes's letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Karen Powell, General Counsel, Finance and Administration Cabinet, by letter dated May 14, 1999, provided this office with a response to the issues raised in the appeal. In her response, Ms. Powell advised:
Ms. Charity King brought this Open Records appeal to my attention. Apparently the original request was sent to her rather than to the Secretary or this office, where such requests are normally handled. Ms. King was unaware of the time limitation and did not respond as required. The Cabinet apologizes for this misunderstanding and delay and will immediately send Mr. Janes the documents he requested.
We are asked to determine whether the responses of the Personnel Cabinet and the Finance and Administration Cabinet were consistent with the Open records Act. For the reasons which follow, we conclude the responses were substantively consistent with the Act.
Addressing first the response of the Personnel Cabinet, we conclude that agency's response was in accord with the Act and prior decisions of this office.
KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records
This office has consistently recognized that a public agency cannot afford a requester access to records which it does not have, or which do not exist. 93-ORD-134. As required by KRS 61.872(4), Mr. Egbers informed Mr. Janes that the Personnel Cabinet did not have the records he requested and notified him of the location and the custodian of the requested records, i.e., the Finance and Administration Cabinet. Accordingly, it is the decision of this office that the response of the Personnel Cabinet was proper and consistent with the Open Records Act.
Addressing the response of the Finance and Administration Cabinet, we conclude that although the response was procedurally deficient in failing to timely respond, as required by KRS 61.880(1) 1, we conclude the appeal as to the Finance and Administration Cabinet is moot because the agency provided Mr. Janes with the records he requested. See 40 KAR 1:030, Section 6, which provides: "If the requested documents are made available to the complaining part after a complaint is made, the Attorney General shall decline to issue a decision in the matter."
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.
Footnotes
Footnotes
1 KRS 61.880(1) 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 record 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."