Opinion
Opinion By: Gregory D. Stumbo,Attorney General;James M. Ringo,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Department of Public Advocacy (DPA) relative to Gregory Valentine's request for copies of records containing cumulative data relative to attorneys filing motions to withdraw over the last five years; attorneys filing motions to withdraw who later appeared as counsel of record for codefendants charged along with those attorney's previous clients, and data relative to defendants, who, were either confidential informants prior to the time of their arrest or who turned states evidence after their arrests and who were ultimately represented by attorneys who initially represented their codefendants, " violated the Open Records Act. For the reasons that follow, we conclude that the Department's actions were proper and did not violate the Act. 1
By letter dated January 22, 2007, Margaret F. Case, General Counsel, DPA, denied Mr. Valentine's request, advising that such data did not exist within the DPA and the agency did not keep records: about withdrawal motions filed by its attorneys or by any other Kentucky attorneys; records showing the number of times any Kentucky attorney has (a) moved to withdraw from one client in a criminal case and then (b) represented a co-defendant in the same criminal case; or records that compiled data on confidential informants and prosecution witnesses, either in cases handled by DPA attorneys or in cases handled by other attorneys. In explaining her efforts in reaching this conclusion, Ms. Case stated:
In coming to my conclusion that the records you request do not exist within our agency, I contacted: (a) the director of DPA's Trial Services Division, who manages the agency's lawyers working in the trial-level courts, (b) the director of DPA's Post-Trial Services Division, who manages the agency's lawyers working in the appellate courts, (c) the manager of DPA's Information Resources Branch, which runs the agency's computerized case-tracking system, and (d) the Public Advocate.
In short, the Department of Public Advocacy would have to conduct a poll of all Kentucky lawyers before the agency would have the information you seek. A public agency is not obligated to create records in order to satisfy an open records request.
The DPA affirmatively advised Mr. Valentine that it did not have records containing the information he was seeking. Obviously, a public agency cannot afford a requester access to records that it does not have or that do not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The DPA further explained to Mr. Valentine that DPA would have to conduct a poll of all Kentucky lawyers to obtain the information he was seeking and a public agency was not obligated to create records in order to satisfy an open records request. This office has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open record request. 06-ORD-098. The DPA discharged its duty under the Open Records Act by affirmatively so advising and explaining why it did not have records containing the information he was seeking. 99-ORD-150.
Moreover, the DPA explained to Mr. Valentine the efforts that were made to locate records responsive to his request. We believe that the search methods employed by the DPA were those which could reasonably be expected to produce the records requested. 95-ORD-96. We therefore affirm the DPA's denial of Mr. Valentine's request on the basis of the nonexistence of any responsive records.
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.
Gregory Valentine, # 163775
Margaret CaseGeneral CounselDepartment of Public Advocacy100 Fair Oaks Lane, Ste. 302Frankfort, KY 40601
Footnotes
Footnotes
1 On February 2, 2007, Mr. Valentine submitted a second "appeal" from DPA's January 22, 2007, response to his request. The issues therein raised are identical to the issues already on appeal, and his subsequent "appeal" is therefore consolidated with the earlier appeal for purposes of adjudication.