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 responses of the Office of the Commonwealth's Attorney, 40th Judicial Circuit, to the open records request of David J. Cazalet, Jr. violated the Open Records Act. For the reasons that follow, we conclude that the agency did not violate the Act.
By letter dated October 23, 2001, Mr. Cazalet, made the following open records request:
The records I require are: 1) copies of all correspondence and petitions relating to the location of the Children's Advocacy Center in Russell County; 2) The names, addresses and telephone numbers of the Children's Advocacy Board of Directors; 3) a complete copy of the grant application and all addendums made by Barbara Lawless for the Children's Advocacy Center to be located in Russell County and 4) any other materials you may have in your possession relating to the Children's Advocacy Center in Russell County.
Responding to Mr. Cazalet's request, Larry E. Rogers, Commonwealth's Attorney, 40th Judicial Circuit, by letter dated October 24, 2001, advised:
This letter is in response to yours of October 23, 2001 concerning a request for records associated with the Children's Advocacy Center. I do not maintain any records associated with this advocacy center. First of all, this center has yet to be put into operation awaiting an announcement by the Governor's Office. There has been no funding at this time forwarded to this facility and all operations are solely on a volunteer schedule.
Any records associated with the Children's Advocacy Center would be maintained by Barbara Lawless and not by my office. I have previously forwarded to you information at my disposal. I request you direct any further correspondence to Barbara Lawless, Director of the Children's Advocacy Center.
In a letter to Mr. Cazalet, dated October 23, 2001, Mr. Rogers, in responding to a telephone conversation between the two, stated:
In response to your telephone conversation, I am forwarding you a copy of the section of the funding application, which deals with the proposed site of the Children's Advocacy Center. Additionally, I am giving you a list of the names of the individuals who provide the board members for the Children's Advocacy Center.
Finally, I do not have the petition that was circulating in opposition to the Advocacy Center being located at the French Valley Road proposed site. However, the name of the spokesperson that contacted me concerning this matter was Kim Huckaby. I am sure she will have a copy of the petition. I hope this information satisfies your inquiry.
We are asked to determine whether the responses to Mr. Cazalet's request for records were in accord with the Open Records Act. For the reasons that follow, we conclude that the responses of the Office of the Commonwealth's Attorney, 40th Judicial Circuit, were consistent with and did not constitute a violation of the 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. 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. Rogers advised Mr. Cazalet that his office did not maintain records associated with the Children's Advocacy Center. He did, however, provide certain information and copies of records at his disposal, such as a copy of the section of the funding application and a list of the names of the board members. Accordingly, under these facts, 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. Roger's advised Mr. Cazalet that Barbara Lawless, Director, Children's Advocacy Center, was the person that maintained records relating to the Center and notified him that further requests for those records should be directed to that person. We conclude that this response was in compliance with KRS 61.872(4) and did not constitute a violation of the Open Records Act.
Accordingly, it is the decision of this office that the responses of the Office of the Commonwealth's Attorney, 40th Judicial Circuit, were consistent with and 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.