December 15, 1993





In Re: Bryan Smeathers/Owensboro-Daviess County Hospital





This matter comes to the Attorney General as an appeal by Bryan Smeathers from the actions of the Owensboro-Daviess County Hospital in responding to Mr. Smeather's request for various documents.


In letters to the Owensboro-Daviess County Hospital, dated November 18 and 19, 1993, Mr. Smeathers requested copies of "ambulance radio logs for the week of Nov. 7 thru 12, 1993" and "ambulance department work schedule for week of Nov. 7 thru 12." He also requested "that the audio tapes of ambulance calls/transmissions from hospital to ambulance/ambulance to hospital/instructions and other radio communications to and from ambulances be made available for the period of November 9, 1993 to November 13, 1993."


In a letter to Mr. Smeathers, dated November 24, 1993, Mr. Mark F. Weber, the President/CEO of the Owensboro-Daviess County Hospital, advised in part that no such logs or tapes exist and, accordingly, they cannot be produced for inspection.

He further stated that the requested work schedule is available for inspection.


In his letter of appeal to this office Mr. Smeathers states in part that he finds it difficult to believe that the hospital maintains no such records. He asks that this office investigate the matter and require the hospital to make available the records he requests.


This office has consistently recognized that a public agency cannot afford the requesting party access to records it does not have or which do not exist. See 93-ORD-95, copy attached. Mr. Weber advised Mr. Smeathers that two categories









of requested records did not exist. That was a proper response to the extent that the hospital could not provide access to records which it did not have.


When presented with a request to inspect public documents, an agency must address two basic questions: Whether it has the materials requested and, if it does, whether those records are subject to public inspection. In the situation presented by this appeal there is no need to address the second question since the first question was answered in the negative.


The undersigned Assistant Attorney General talked by telephone with the attorney for the hospital on December 14, 1993, and was advised that while there had been a taping procedure in place and while something will be implemented in the future, there is no such procedure in place now nor was there during the time frame with which Mr. Smeathers is concerned.


The Open Records Act regulates access to public records, and not records management. Our decision must be limited to the question arising under KRS 61.870 to KRS 61.884. That question, simply stated, is does the public agency have the documents in its possession at the time the requests are made? See OAG 91-220, copy enclosed. The hospital's response was sufficient and proper under the Open Records Act since it did not have possession or custody of two categories of documents requested.


Mr. Smeathers may challenge this decision 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 filed in the circuit court but he shall not be named as a party in that action or in any subsequent proceedings.







Thomas R. Emerson

Assistant Attorney General

(502) 564-7600













Copies of this decision

have been mailed to:


Bryan Smeathers

911 Allen Street

Owensboro, Kentucky 42303


Mark F. Weber


Owensboro-Daviess County Hospital

811 East Parrish Avenue

Owensboro, Kentucky 42303