Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Transportation Cabinet relative to the open records request of James Hacker violated the Open Records Act. We conclude the actions of the Cabinet, although procedurally deficient, were in substantial compliance with the Act.
By letter dated November 7, 2001, Mr. Hacker made the following request:
We are requesting all records that your office can provide that has anything to pertain to the Region 12 Medicaid non-emergency brokerage currently held by Rural Transit Enterprises Coordinated? Please include all financial statements for the past two years. Monthly summary reports, any reporting showing how much funding went to themselves and what were their breakdown of expenses has been to operate the contract since 1999.
By letter dated November 27, 2001, Ed Roberts, Commissioner, Department of Administrative Services and Custodian of Records, citing KRS 61.878(1)(c)a, b, and d, denied the request, stating that release of the requested financial data is prohibited due to the fact that if it was openly disclosed would permit an unfair commercial advantage to competitors.
On behalf of Mr. Hacker, Gary W. Napier, appealed the Cabinet's denial, arguing, in part, that it believed "the records requested are those of a public agency as that term is defined by KRS 61.870(1)(h) and that the statutes governing the Human Transportation Delivery Program require disclosure."
After receipt of Notification of the appeal and a copy of Mr. Napier's letter of appeal, Todd Shipp, Assistant General Counsel, on behalf of the Cabinet, provided this office with a response to the issues raised in the appeal and indicated that a copy of its response had been provided to Mr. Napier. In his response, Mr. Shipp advised:
This is to advise that this Cabinet does not possess the material requested by Mr. Napier. This Cabinet is the supervisory agency for the Human Services Transportation Delivery Program but is not the repository of any materials that forms the basis of RTEC's Proposal or the Request for Proposal. These materials are within the complete control and custody of the Kentucky Finance Cabinet. This information has been provided to this office by the Executive Director, Vickie Bourne of the Division of Transportation Delivery.
This information was not provided to Commissioner Ed Roberts. His office was initially advised that the information was considered confidential and generally not shared. He was not informed that Finance had the documents. Thus, it is the Finance Cabinet that can provide these materials to Mr. Napier.
We are asked to determine whether the responses and actions of the Cabinet violated the Open Records Act. For the reasons that follow, we conclude that, although the agency's initial response was procedurally deficient, its supplemental response was in substantial compliance with the Act.
KRS 61.880(1) requires that an agency respond to an open record request in writing within three business after its receipt. The record before us indicates Mr. Hacker's request, dated November 7, 2001, was responded to by the Cabinet by letter, dated November 27, 2001. Thus, the response was outside the three day requirement and constituted a procedural violation of the Open Records Act.
Addressing the substantive issue, the Cabinet, in its supplemental response, indicated its initial response was deficient in that it was based on incomplete information as to the location of the requested records and upon subsequently determining that the records were in the possession of the Finance Cabinet, so advised Mr. Napier by providing him with a copy of the supplemental response submitted to this office.
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. An agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In its supplemental response, the Cabinet affirmatively advised Mr. Napier that it did not have the records he requested. Accordingly, we find no violation of the Open Records Act in this regard. 99-ORD-150.
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.
In the Cabinet's supplemental response, Mr. Napier was notified that the records he was seeking were within the "complete control and possession of the Kentucky Finance Cabinet." Accordingly, we conclude that Cabinet's response was in substantial 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.
Gary W. Napier819 N. Main StreetLondon, KY 40745-5087
Ed RobertsDepartment of Administrative ServicesTransportation CabinetState Office BuildingFrankfort, KY 40601
Todd ShippOffice of General CounselTransportation CabinetState Office BuildingFrankfort, KY 40601