Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the OAG did not violate provisions of KRS 61.870 to 61.884 in denying Kerry R. Porter, Sr.'s, May 30, 2011, request to inspect and copy "any and all correspondence [to] and [from] the Louisville Homicide Unit in respect to the murder investigation of a Tyrone C. Camp . . .[,] case no. 96-324." 1 Mr. Porter's request was directed to the Kentucky Bureau of Investigation, now the Department of Criminal Investigations. In it he identified twenty-six "examples" of the records sought consisting primarily of various reports and test results. Because the OAG did not investigate this case, it does not maintain any responsive records. The office discharged its statutory duty by advising Mr. Porter accordingly and furnishing him with the names and addresses of agencies that maintain the records sought. KRS 61.872(4). 2
In supplemental correspondence directed to the undersigned after Mr. Porter initiated this appeal, Assistant Deputy Attorney General Mitchel T. Denham indicated that, notwithstanding the fact that the Kentucky Bureau of Investigation did not investigate this case, the OAG conducted "[a] search of Department of Criminal Investigation's records" and located "no responsive records." He advised that the OAG then conducted "[a]n expanded agency wide search," but again located no responsive records. He concluded that "[t]he OAG simply does not possess the records he seeks."
It is the decision of this office that 94-ORD-140 and 06-ORD-070, copies of which are attached hereto and incorporated by reference, are dispositive of the question on appeal. The Office of the Attorney General cannot produce for inspection and copying records that are not in its possession. Assistant Deputy Attorney General Denham demonstrates that the office "made a good faith effort to conduct a search using methods that can reasonably be expected to produce the records requested." Although "the fruits of that search" did not meet Mr. Porter's expectations, 06-ORD-070, p. 10, he presents no evidence calling into question the OAG's veracity. We therefore affirmed the OAG's denial of his request. Accord, 04-ORD-103; 06-ORD-053.
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.
Distributed to:
Kerry R. Porter, Sr., # 126590Mitchel Denham
Footnotes
Footnotes
1 The record on appeal does not substantiate additional allegations leveled against the OAG by Mr. Porter.
2 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.