Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Newport violated the Kentucky Open Records Act in its disposition of Justin Barker's March 25, 2016, request for copies of "[a]ll parking tickets written by officer C855 on 3/8/16 and 11/12/16 [sic] or the date 679998 was written" and "Officer C855's time cards for the dates above." We find no violation of the Act.
In his undated appeal received by this office on May 11, 2016, Mr. Barker alleges that he "tried to deliver the request in person on March 25th and . . . was turned away." In a response dated May 17, 2016, City Attorney Robert E. List characterizes Mr. Barker's allegations as "unsubstantiated claims," adding that "Mr. Barker fails to state how he delivered the prior requests and who at the City turned him away." He asserts that "[t]he City would not turn away or otherwise reject an Open Records request delivered to it in writing."
While this office is unable, without evidence, to resolve the conflicting factual allegations regarding the alleged events of March 25, 2016, the City points out that on May 12, 2016, Mr. Barker submitted the same request with some further items added. With regard to the parking tickets, the City indicates that they were made available to Mr. Barker; thus this appeal is moot as to those records.
As for the "time cards, " the City responded to Mr. Barker on May 13, 2016, that "there are no records." 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. There is nothing in the record in this case to indicate that time cards should exist, as it is entirely possible that the City uses other methods of recording officers' time.
Finally, as to the items added to Mr. Barker's May 12 request, these are not properly before us on appeal, since only the March 25 version of the request was provided by Mr. Barker. See KRS 61.880(2)(a) ("If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request"). Accordingly, we find no violation of 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.