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 Kentucky Department of Public Advocacy (DPA) relative to the open records request of Julius Black for "a complete copy of my file case # 98-CR-0008," violated the Open Records Act. For the reasons that follow, we find that the actions of the agency were proper and did not constitute a violation of the Act.
By correspondence dated July 17, 2001, Larry D. Beale, General Counsel, DPA, informed Mr. Kemper that the agency did not possess the requested records and advised him that he should contact his trial attorney, Kate Dunn, Fayette County Legal Aid, 111 Church Street, Lexington, KY 40507, to obtain the records he sought.
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. 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. Mr. Beale advised Mr. Kemper that the DPA did not have his case file. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
Moreover, 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.
Mr. Kemper was notified that his case file would be maintained by his trial attorney and provided him with the name and address of that attorney. Accordingly, we conclude that Department's response was in compliance with KRS 61.872(4) and 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.