Opinion
Opinion By: Gregory D. Stumbo, Office of Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Governor violated the Open Records Act in the disposition of the request of Irwin H. Cutler, Jr. for records pertaining to the Department of Labor's investigation of TECO Mechanical Contractors, Inc. For the reasons that follow, we find that, with the exception of a procedural deficiency, the response of the Office of the Governor did not constitute a violation of the Act.
By letter dated September 6, 2006, Mr. Cutler submitted a follow-up request to a previous request to the Office of the Governor, stating:
In Michael T. Alexander's letter of July 3, 2006, in response to my earlier open records request (Log. No. 200600351), he enclosed several records. However, it appears from the records provided that other records or documents in your possession or control have not been provided. Therefore, I hereby renew my request under the Kentucky Open Records Law as follows:
After receipt of notification of the appeal and a copy of the letter of appeal, Mr. Alexander, Deputy General Counsel, provided this office with a copy of the agency's November 16, 2006, response to Mr. Cutler's request. In that response, the agency responded to his numbered requests as follows:
Response to request number 1: On July 3, 2006, we provided you with a copy of all records and documents in our possession concerning this matter. Once again, please be advised there are no additional records in the Office of the Governor responsive to your request.
Response to request number 2: On July 3, 2006, we provided you with a copy of all records and documents in our possession concerning this matter. Once again, please be advised there are no additional records in the Office of the Governor responsive to your request. According to Ms. Cox, the letter was sent on March 10, 2005. Under our mail log system, signed copies of letters by employees in the Office of Constituent Services are not maintained.
Response to request number 3: On July 3, 2006, we provided you with a copy of all records and documents in our possession concerning this matter. Once again, please be advised there are no additional records in the Office of the Governor responsive to your request.
We are asked to determine whether the response of the Office of the Governor violated the Open Records Act. For the reasons that follow, we conclude that, with the exception of a procedural deficiency, the agency did not violate the Act.
Obviously, a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so advising the requester of that fact. 99-ORD-150. The Office of the Governor discharged its duty under the Open Records Act by affirmatively so advising Mr. Cutler that he had been provided with all records in its possession that were responsive to his request and that it had no other records responsive to his request. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
Moreover, where some, but not all, of the requested records are disclosed, this office has generally declined to attempt to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 4 (emphasis added). We see no reason to depart from that position in the instant appeal. 06-ORD-042.
The only additional duty of the public agency in such a situation is to advise the requesting party who does have the document in question, if such information is known to the agency. KRS 61.872(4); 03-ORD-225. If the Office of the Governor is aware of another agency that may have custody and control of records responsive to Mr. Cutler's request, it should provide him with the name and location of the official custodian of that agency's records. KRS 61.872(4).
Finally, KRS 61.880 sets forth the legal obligations of a public agency upon receipt of an open records request. Subsection (1) of that provision requires a public agency to respond to the requesting party within three working days of receipt of the request, notifying the party whether it will comply with his request. These requirements, the Attorney General has often noted, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5.
The record before us indicates that Mr. Cutler mailed his open records request on September 6, 2006, and it was received by the Office of the Governor on September 7, 2006. The agency responded by letter dated November 16, 2006, over a month later. In 00-ORD-159, we determined that a one month delay violated KRS 61.880(1), absent a reasonable explanation for that delay, given the limited scope of the subject request. Accordingly, we find the Office of the Governor's delay of over a month in responding to the request violated KRS 61.880(1), particularly in light of the fact that it offered no written explanation for the delay. 04-ORD-138.
A party aggrieved by this decision may appeal it by initiating an 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.
Irwin H. Cutler, Jr.Priddy, Cutler, Miller, & Meade PLLC800 Republic Building429 West Muhammad AliLouisville, KY 40202
Michael T. AlexanderDeputy General CounselOffice of the Governor700 Capitol Avenue, Suite 100Frankfort, KY 40601