Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Rockport violated the Open Records Act in the disposition of Mayor Shirley Smith's October 16, 2009, written request for a copy of a tape recording made of the City Commission meeting on October 5, 2009. For the reasons that follow, we find that the City's response was not substantively in violation of the Act but raises some concerns about the City's records management practices.
We begin by observing that the City committed a procedural violation of KRS 61.880(1) by not making the required written response to the request within three (3) business days. Mayor Smith initiated an appeal to this office on November 16, 2009, after still receiving no response. 1 In the City's response to the open records appeal on November 30, 2009, the City Commissioners stated the following:
As to her complaint about not receiving a copy of the tape that was made at the closed meeting, the tape was taken back to the city hall on Wednesday, October 7 at 7 a.m. and left for the city clerk in a sealed manila envelope. When the clerk came in that morning at 8:30, the envelope was on her desk and the seal broken and the tape was not there. We do not have the tape to give to [Mayor Smith]. Anyone with a key could have taken it.
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 stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states do not exist. In this case, however, the City alleges that the tape of the meeting, which apparently was meant to be an official record, has been stolen from the clerk's desk. While we cannot find a substantive violation of the Open Records Act, this gives cause for concern about the City's records management practices.
In its 1994 amendments to the Kentucky Open Records Act, the General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. The loss of a public record in this manner raises records management issues which may be appropriate for review under Chapter 171 of the Kentucky Revised Statutes. An agency's "inefficiency in its own internal record keeping system" should not be allowed "to thwart an otherwise proper open records request." Com. v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008). Accordingly, we refer this matter to the Department for Libraries and Archives for additional inquiry as that agency deems warranted.
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 proceedings.
Hon. Shirley SmithSarah Campbell, CommissionerNancy Roop, CommissionerDonna Harris, CommissionerTania Burns, CommissionerE. Glenn Miller, Esq.
Footnotes
Footnotes
1 Her appeal was also taken under the Open Meetings Act. The open meetings issues are addressed in 09-OMD-210.
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