00-ORD-218
November 20, 2000
In re: Jo Coffman/Shepherdsville/Bullitt County Tourist & Convention Commission
Open Records Decision
The issue presented in this appeal is whether the Shepherdsville/Bullitt County Tourist & Convention Center violated the Open Records Act in its actions relative to the request of Jo Coffman for a copy of the Commission’s revised job descriptions and a corrected copy of the agency’s by-laws.
In a letter addressed to the Commission, dated October 5, 2000, Ms. Coffman advised she had been requesting a copy of these documents for the past six months and had yet to receive copies of the requested records.
In her letter of appeal, Ms. Coffman states that she appeared before the Commission at its October 10, 2000 meeting and asked when she could expect to receive the requested records. She states that the Chairman Mark Edison advised her that he had not had a chance to review the tapes of the minutes where the Commission voted on the changes of the job descriptions and by-laws. In response to a question as to when she could expect to receive the record, Ms. Coffman states that the Chairman answered that he did not know.
After receipt of the Notification to Agency of Receipt of Open Records Appeal, Mr. Edison, on behalf of the Commission, provided this office with a response to the issues raised in the appeal. In his response, Mr. Edison explained, in part:
As her letter of October 5, 2000 states, she is requesting a copy of revised job descriptions and a corrected copy of the by-laws of the Commission. Neither of these documents exist, and Ms. Coffman is fully aware of this fact. Ms. Coffman possessed the last typed versions of the job descriptions and the by-laws. The by-laws were contained in her Commissioner’s Binder which was made available to her throughout her term as a Commissioner and to my knowledge she could take with her at anytime. Ms. Coffman wished the most recent versions of these two (2) documents to be changed based on her belief they were incorrect; however, this has not yet been done, because the rest of the Commission did not seem to agree with her.
Enclosed herewith are copies of the September 12, 2000, August 8, 2000, and July 11, 2000, Commission meeting minutes where Ms. Coffman was advised that these revised documents had not yet [been] prepared. This is due to my review of the tape recorded records of the meetings where these issues were discussed to insure that accurate documents were prepared. There was some Commission disagreement as to exactly what was voted upon. In these meetings, Ms. Coffman was advised of this fact.
Ms. Coffman was not denied copies of public records maintained by the Shepherdsville/Bullitt County Tourist & Convention Commission because the changed documents she requested do not exist and she was aware of this fact.
We are asked to determine whether these actions of the Commission violated the Open Records Act. For the reasons that follow, we conclude that the Commission’s response, although procedurally deficient, was substantively proper and did not constitute a violation of the Act.
We address first the procedural issues. 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.
In construing this provision, the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). As noted, it expressly requires a timely, written response directed to the person making the request.
Although the Commission’s response to the letter of appeal indicates it responded to Ms. Coffman’s request orally, it failed to respond to that request in writing. This failure constituted a violation of the procedural requirements of KRS 61.880(1). As we have so often noted, the procedural requirements of the Open Records Act are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125.
Turning to the substantive issue of records access, we find that the Commission subsequently discharged its duties under the Open Records Act by advising Ms. Coffman that the records which she requested did not yet exist. As noted above, the Chairman advised that he had to review the tape recorded records of the meetings where these issues were discussed to insure that accurate documents were prepared.1 The agency affirmatively stated that the revised documents had not yet been prepared and thus did not exist.
Obviously, a public agency cannot afford a requester access to records that it does not have or which do not exist. 99-ORD-98. The Commission has advised that the requested records do not exist. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, we find that the actions of the Commission were in accord with the requirements of the Open Records Act and prior decisions of this office. 00-ORD-108.
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.
Albert B. Chandler III
Attorney General
James M. Ringo
Assistant Attorney General
#635
Distributed to:
Jo Coffman
P.O. Box 185
Shepherdsville, KY 40165
Mark Edison, Chairman
Shepherdsville/Bullitt County Tourist & Convention Commission
395 Paroquet Springs Drive
Shepherdsville, KY 40165
Joann Yates
395 Paroquet Springs Drive
Shepherdsville, KY 40165
Norman Lemme
Shepherdsville City Attorney
P.O. Box 400
Shepherdsville, KY 40165
Walter Sholar
Bullitt County Attorney
P.O. Box 6539
Shepherdsville, KY 40165
[1] Both parties provided copies of Commission meeting minutes that indicate that the agency had extended discussions and meetings about amending job descriptions and the by-laws. Mr. Edison, in his response to the letter of appeal, indicated that there was Commission disagreement as to what exactly was voted upon and he was reviewing the audio tapes of the meetings to insure that the minutes accurately reflected what occurred at the meeting.