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 action of the Motor Vehicle Commission relative to the open records request of Johnny Ray Carnes, dated October 5, 1999, which asked to inspect the following documents:
A. James Phipps response July 1999
All Star Motor
HA 76 Box 555
Flat Lick
B. James Phipps response Sept 1999
C. Request for a hearing before the Vehicle Commission board Sept. 20, 1999
D. Karen Bright response
Request 8/27/99
In his letter of appeal, dated October 8, 1999, Mr. Carnes stated that he had yet to receive a response to his request.
After receipt of the letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal" to the Motor Vehicle Commission, with a copy of Mr. Carnes's letter attached. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, David Garnett, Executive Director, provided this office with a copy of his letter to Mr. Carnes, dated October 18, 1999, in which he advised that the Commission had received no written responses from Mr. Phipps in response to the Commission's letters of July and September, 1999. Mr. Garnett further advised Mr. Carnes that he had received a telephone call from Scott Phipps on July 22, 1999, and a telephone call from Ray Phipps on September 30, 1999. In his letter, Mr. Garnett described the essence of those calls to Mr. Carnes.
In reference to Mr. Carnes's request, directed to Karen Bright, for information on the issuance of a title, Mr. Garnett advised that he had forwarded his request to the Title Branch of the Transportation Cabinet's Department of Vehicle Regulation, Division of Motor Vehicle Licensing.
We are asked to determine whether the actions of the Commission were consistent with the requirements of the Open Records Act. For the reasons that follow, we conclude that, with the exception of a procedural deficiency, the agency's action were substantively proper and consistent with the Act.
KRS 61.880(1) contains guidelines for agency response to an open records request, and requires that the response must be in writing and issued within three business days of receipt of the request. Mr. Carnes's request was submitted on October 8, 1999. The Commission responded on October 18, 1999. Thus, the agency's response was procedurally deficient in failing to provide its response within three business days after its receipt of Mr. Carnes's request.
However, we conclude that, in all other respects, the Commission's actions complied with the requirements of the Open Records Act. The Commission advised Mr. Carnes that it could not provide him with the responses from James Phipps in July and September, 1999 which he requested because Mr. Phipps had submitted no written responses. The Attorney General has long recognized that a public agency cannot afford a requester access to records which do not exist. See, e.g. , OAG 83-11; OAG 87-54; OAG 91-112; OAG 91-203. Moreover, Mr. Garnett did provide Mr. Carnes with a summary of two telephone conversations that he had received from Scott and Ray Phipps during the relevant time period. We find no violation of the Open Records Act here.
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.
Consistent with the requirements of KRS 61.872(4), Mr. Garnett advised Mr. Carnes of the name and location of the official custodian of the record he requested and forwarded his request accordingly. This, too, was in accord with the requirements of the Open Records Act.
In his letter of appeal, Mr. Carnes also appeals the failure of the Commission to respond to his request for a hearing. An agency's failure to respond to a request for a hearing is not a proper subject matter to be reviewed in an open records appeal and, thus, does not constitute a violation of the Act. However, we do note that in his letter to Mr. Carnes, Mr. Garnett advised that hearings before the Commission were not automatically scheduled upon receipt of a complaint and that he would be notified when a decision was made to issue an administrative citation to the dealership involved 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.