Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the actions of the Department of Public Advocacy (DPA) relative to the open records request of Harry Parsons, dated May 31, 2000, for a copy of the "criminal background of the victim (Sherman Lee Anderson) in my case." In his letter of appeal, Mr. Parsons indicated that he had not received a response to his request.
After receipt of Notification to Agency of Receipt of Open Records Appeal, Larry D. Beale, General Counsel, Department of Public Advocacy, provided this office with a response to the issues raised in the letter of appeal. In his response, Mr. Beale enclosed a June 23, 2000 letter from James N. Norris, staff attorney for the London DPA, to Mr. Parson. In that letter, Mr. Norris advised Mr. Parsons that DPA had searched his case file and there was no copy of the criminal history on the victim of his case, Sherman Lee Anderson.
We are asked to determine whether the actions of the DPA were in compliance with the Open Records Act. For the reasons that follow, we conclude that the agency's actions were substantively correct and did not constitute a violation of the Open Records Act.
This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. In Mr. Norris' letter of June 23, 2000, Mr. Parsons was advised that the agency did not have the record he requested. Obviously, a public agency cannot afford a requester access to records that it does not have. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150.
The agency's response was procedurally deficient in failing to respond to Mr. Parson's open records request within three business days after its receipt. KRS 61.880(1). However, we find that the substantive response of the DPA in responding to Mr. Parsons' request did not constitute a violation of the Open Records Act.
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.