June 14, 1993






IN RE: William Gann/Department of Kentucky State Police






This matter comes to the Attorney General on appeal from the actions of the Department of Kentucky State Police in responding to Mr. William Gann's May 3, 1993, request to inspect certain documents in the Department's custody. Those records are described as certified copies of property release forms identifying the person or persons to whom his property was released at the time of his arrest. Mr. Gann is an inmate in Valdosta, Georgia, and his request was made under the Kentucky Open Records Act.


Mr. Gann had previously submitted a request to the State Police for "property lists" or "receipts." On April 22, 1993, Ms. Diane Smith, Official Custodian of Records for the State Police, responded to that request, providing Mr. Gann with copies of the Kentucky State Police Recovered Property Forms from his case. It was Mr. Gann's position that these documents do not reflect the items seized. He therefore resubmitted his request on May 3. In response to his second request, Ms. Smith advised Mr. Gann that "[t]he only record which can be located relating to the recovery of property had been forwarded to [him] . . . by previous correspondence." This response was issued on May 5, 1993.


We are asked to determine if Ms. Smith's May 5 response constituted a violation of the Open Records Act. For the reasons set forth below, we conclude that her actions were entirely consistent with the Act.


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; 93-ORD-19. A request for such document 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 or are not in its possession. As we observed in OAG 86-35, at page 5:


This Office is a reviewer of the course of actions 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 is dispositive of the present appeal.


Ms. Smith advised Mr. Gann that she had provided him with all existing documents which satisfied his request. His case file contains no other documents relating to recovered property. Her response was therefore consistent with the Open Records Act.


Mr. Gann may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.














Distributed to:


Ms. Diane H. Smith

Official Custodian of Records

Kentucky State Police

919 Versailles Road

Frankfort, KY 40601


Mr. William Gann, EF. 177421

D-2-54 V.C.I.

P. O. Box 310

Valdosta, GA 31603