NOT TO BE PUBLISHED
January 29, 1993
IN RE: Jeanine Howard/Barren River District Health Department
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Barren River District Health Department's partial denial of Ms. Jeanine Howard's November 17, 1992, request to inspect certain records in the Department's custody. Those records are identified as:
1. Minutes from Board of Directors Meetings - 11-16-92/10-19-90;
2. Budgets for 1989 - 1990, 1990 - 1991, 1991 - 1992;
3. Hiring Policies or Guidelines;
4. Complaints reviewed by Board concerning operations of Chuck Bunch.
Ms. Howard is Assistant News Director at WKYU-FM, Western Kentucky University's public radio station, and her request was made under the Open Records Act.
Ms. Howard was permitted to inspect all of the requested documents with the exception of the complaints concerning Chuck Bunch. On behalf of the Department, Mr. Charlie Scott denied that portion of her request, advising her, "No record exists because of Executive Closed Session." He referred Ms. Howard to the comments of the Department's attorney. Those comments consist of a handwritten note containing the following statement: "personnel matter divulged in executive closed session therefore excepted KRS 61.878(5)(1)(a)[sic]."
In her letter of appeal to this Office, Ms. Howard states that it is her understanding that Department employees "Filed signed affidavits with the board of directors concerning the operation practices of the Executive Director Chuck Bunch." She explains that Mr. Bunch was suspended from his post on November 16, 1992. Continuing, she observes:
Although the complaints were discussed in executive session, I believe they should be subject to the Open Records Law. The complaints were obviously filed before the meeting, the executive director is being reprimanded for his alleged misconduct, and the public has a right to know about the alleged improprieties concerning the director, the agency and the possible misuse of their tax dollars. Therefore, I do not believe my request is an unwarranted invasion of privacy. The public trust of the agency is at stake.
In a response to this Office's request for additional information, Mr. Andrew J. Russell, an attorney representing the Barren River District Health Department, advised us that the Department's decision to suspend Mr. Bunch "was not based on any written complaints or documents of any kind." He indicates that the action was precipitated by "oral complaints from departmental personnel." Mr. Russell concludes that inasmuch as there were no complaints reviewed by the Board of Directors at its November 16 meeting, "there is nothing available to furnish Ms. Howard."
The question presented in this appeal is whether the Barren River District Health Department violated the Open Records Act in partially denying Ms. Howard's request. For the reasons set forth below, we conclude that although the grounds for nondisclosure stated by Mr. Scott in his initial denial were somewhat misleading, the Department properly advised Ms. Howard that no records exist which satisfy her request.
This Office has consistently recognized that a public agency cannot afford a requester access to records which it does not have, or which do not exist. OAG 83-111; OAG 86-35; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203; OAG 91-220; OAG 92-25. A request for such documents is moot, and obviously cannot be honored. We have also recognized that the Attorney General is not empowered to investigate in order to locate documents which the requesting party maintains exist, but which
the public agency states do not exist. As we observed in OAG 86-35, at p. 5:
This Office is a reviewer of the course of action taken by the public agency and not a finder of documents or possible documents for the party seeking to inspect such documents.
We believe this opinion to be dispositive of the instant appeal.
KRS 61.991(2)(a) establishes a penalty for public officials who willfully conceal or destroy public records with the intent to violate the provisions of the Open Records Act. There is no proof, in the instant appeal, that the disputed documents were concealed or destroyed. Such evidence, if it exists, should be presented to the local prosecutor, who may proceed to a determination of this matter. The Attorney General is not, however, authorized to render a decision on this question in an open records appeal.
Ms. Howard may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Mr. Charles Scott
Staff Administrative Assistant
Barren River District Health Department
P. O. Box 1157
Bowling Green, Kentucky 42102
Ms. Jeanine Howard
Assistant News Director
Western Kentucky University
Bowling Green, Kentucky 42101
Hon. Andrew J. Russell
Smith and Smith
400 North First Trust Centre
200 South Fifth Street
Louisville, Kentucky 40202-3238