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 Office of the Spencer County Attorney violated the Open Records Act in the disposition of Lawrence Trageser's June 9, 2014, request for "records reflecting checks issued from the Spencer County Attorney's office for restitution payment of bad checks written to any and all individuals within the county attorney's jurisdiction" between January 1, 2011, and June 6, 2014. For the reasons that follow, we find no violation of the Act.
In her response to Mr. Trageser's request dated June 13, 2014, Treasure Bryant of the county attorney's office stated that "any records prior to the [bank] statement dated 12/31/2011 are no longer in our possession as they have been destroyed. " Mr. Trageser was given 21 pages of responsive records.
Evidently two restitution checks had been written to a Roy Wyatt. A copy of one check dated April 2, 2014, was provided to Mr. Trageser. On July 28, 2014, Mr. Trageser requested a copy of the Certificate of Destruction for the 2011 records, which revealed that an on-site shredding had taken place on April 18, 2014.
Mr. Trageser appealed to the Attorney General on January 1, 2015. While he offers no evidence of other checks from 2011 that were destroyed besides the one written to Roy Wyatt, he questions whether the destruction of that check, and possibly others, could have occurred in keeping with the Local Governments General Records Retention Schedule.
We do not find a violation of the Open Records Act because the check reportedly was destroyed pursuant to the records retention schedule. 13-ORD-024. 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 this case, the county attorney's office has explained the nonexistence of the check through reference to the Certificate of Destruction. We thus find no violation of the Open Records Act as such.
Mr. Trageser, however, raises questions relating to whether the check was properly destroyed. Although these issues do not bear directly on the Open Records Act, we shall address them because of the "essential relationship between the intent of [the Act]" and statutes relating to records management, recognized in KRS 61.8715.
Series L5001 of the Local Governments General Records Retention Schedule covers cancelled checks and duplicate copies of checks. The record series "documents all banking transactions ? and is maintained to verify the checks written and reconciliation of accounts. It is also used as an audit trail and a reference." (Emphasis added.) The retention and disposition instructions direct as follows: "Retain for three (3) years, then destroy after audit. "
The bad check for which restitution was made to Mr. Wyatt was written on March 1, 2011. Therefore, for the destruction of the county attorney's restitution check to have complied with the records retention schedule, the following must have been true: an audit must have been performed at some time between March 1 and April 18, 2014; and the destroyed restitution check must have been issued between March 1, 2011, and the date in 2011 corresponding to the date of the audit in 2014.
There is nothing in the record to establish whether the above was in fact the sequence of events, or whether any checks from later dates in 2011 were destroyed in contravention of the retention schedule. Accordingly, we can make no finding on this issue, but merely note the county attorney's obligation to comply with the records retention schedule.
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.