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 Department of Kentucky State Police ("KSP") violated the Open Records Act in the disposition of Minnie M. McCord's May 11, 2015, request for all records relating to a criminal matter involving her. For the reasons that follow, we find no violation of the Act.
The record does not reflect the agency's initial response, but after receiving payment for copies, the KSP sent responsive records to Ms. McCord on June 4, 2015. Ms. McCord's undated appeal to the Attorney General, received in this office on June 17, 2015, is based on her belief that additional records exist beyond those provided to her: "There was no UOR1 report, there were two KYIBRS reports that were not included in the response, KYIBRS reports were missing on Christian Jent and Lane Cooper." She also states that she wanted "informant information" and "a copy of the original arrest warrant. "
On June 25, 2015, KSP records custodian Emily M. Perkins responded to the appeal, stating that Ms. McCord was sent all the responsive records KSP had. She advised that UOR reports were no longer in use by the time the incident in question was reported, having been replaced by KYIBRS reports. "Further, one KYIBRS report is completed for each investigation, and generally lists the suspects, victims, and witness information." The KYIBRS report that exists pertaining to this incident, which does list Lane Cooper as a witness, but does not list Christian Jent, was provided to Appellant." (Emphasis in original.) As to the warrant, Ms. Perkins stated that warrants are court records and "[t]he KSP produced a copy of all available warrants that were copied into its investigative file."
We find no violation of the Open Records Act. 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 it does not possess.
The Kentucky Open Records Act was substantially amended in 1994. 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. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial, we do not believe that this appeal warrants additional inquiries, as the KSP has explained the absence of additional records. Accordingly, we find that the KSP did not violate the Open Records Act.
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.