Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Jeffersontown violated the Open Records Act in its handling of Joseph B. Wise's September 20, 1999, request for a copy of records relating to "the apparent low bidder for all phases on the Stony [sic] Brook Firehouse Project." For the reasons that follow, we find that although the city cannot be said to have committed a substantive violation of the Act, inasmuch as it cannot produce records which are not in its custody, its apparent failure to comply with the requirements set forth in KRS 61.880(1) constituted a procedural violation of the Open Records Act.
In his October 4 letter of appeal, Mr. Wise complains that on September 20 he sent a certified letter requesting the records to Frank Greenwell, Jeffersontown City Clerk, but did not receive a response. This was confirmed in a conversation between Mr. Greenwell and the undersigned Assistant Attorney General on October 27. Mr. Greenwell explained that upon receipt of the request, he immediately forwarded it to the Jeffersontown Fire Protection District for response. Having received no written response, Mr. Wise initiated this appeal.
Shortly after the city was notified of the appeal, city attorney Fred E. Fischer contacted this office to advise us that "the City of Jeffersontown, Kentucky had absolutely nothing whatsoever to do with the bidding, letting, construction or development of the Stoney Brook Firehouse." He asserted that the city has " no records and Mr. Wise has been so advised." (Emphasis in original.) The certificate of service appearing on Mr. Fischer's letter indicated that a copy was sent to Mr. Wise. Based on our conversations with Mr. Greenwell and Mr. Fischer, it appears that this letter to the Attorney General represented the city's first and only written response to Mr. Wise's request. In our view, this response did not conform to the requirements of KRS 61.880(1).
A public agency to which an open records request is made must comply with KRS 61.880(1) in responding to that request regardless of whether it has custody or control of the requested records. 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.
"The procedural requirements of the Open Records Act, " this office has often observed," are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p.5. Nothing in the statute relieves the agency of the duty to comply with these requirements when the records identified in the request are not in its custody. An appropriate response in this case would consist of a written statement that the records are not in the custody or control of the City of Jeffersontown, accompanied by the name and location of the actual custodian of the records, addressed to Mr. Wise and issued within three business days. KRS 61.880(1); KRS 61.872(5).
Although this procedural violation was mitigated by Mr. Greenwell's attempt to facilitate a proper response by immediately forwarding the request to the custodial agency, the Jeffersontown Fire Protection District, we nevertheless urge the City of Jeffersontown to review these provisions to insure full compliance with the Open Records Act.
Having said this, we find that the city did not violate the Open Record Act by failing to disclose records which are not in its custody. The Attorney General has long recognized that a public agency is not bound to honor a request for records which do not exist, or are not in its custody. OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203; 98-ORD-200. Where, as here, the basis for agency denial of an open record request is that the agency is not the custodian of the records, and the arguments presented support this view, no additional inquiry is warranted. The bidding process for the Stoney Brook Firehouse project was conducted by the Jeffersontown Fire Protection District, "a separate taxing agency with no corporate affiliation with the City of Jeffersontown, Kentucky." The failure of the city to produce these records does not constitute a violation of the Act. Mr. Wise may wish to submit a new open records request to the Fire Protection District.
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.