March 21, 1994







IN RE: Bryan Smeathers/City of Owensboro






This appeal originated in a request for public records submitted by Mr. Bryan Smeathers to the City of Owensboro on March 3, 1994. Those records are identified as:


1. Written determination as provided for by Section 2-147 "Written Procurement Determinations" for the purchase of the following services:


A. Funding of the Emrick feasability study for the Museum. (March 1993)


B. Asbestos study for Anderson building by Ronney-Blake & Shell P.S.C. (November 1993)


C. Appraisal services of Galloway Appraisals (June 93)


2. Also request the documents on the above as provided for in Section 2-147 A & B.


3. All delegations of authority for procurement functions for the City of Owensboro as provided for in Section 2-146 of the Owensboro Municipal Code.


4. Any documents which indicates the funds were budgeted or allocated for A, B, & C above as per Sections 2-146(b) of the Owensboro Municipal Code.


5. Any competive negotiation documents for A-B-C above as provided for by Section 2-150(a)(1) of the Owensboro Municipal Code.


6. Written determination for non-competitive negotiations as required by Section 2-151(a) for the Galloway Appraisal of Anderson and Museum, the Ronney Blake & Shell Asbestos study of Anderson Building and the Emrick feasability study payment.


7. Municipal Order for the hiring of the appraisal service, asbestos study, and feasibility report issued by the board of commissioners in open session as required by Section 2-151 of the Owensboro Municipal Code paragraph (9) page 89 of Suppliment Number 16 of the code if this was non-competitive services.


8. Copies of the City commission minutes which relate to the enactment of the required municipal order requested in paragraph 7 above.


According to Mr. Smeathers, on March 9, 1994, City Attorney David Fowler orally advised him that the records identified in his request were not available. Mr. Smeathers asked that Mr. Fowler or the City Clerk provide him with a written response, but they declined. This appeal followed.


We are asked to determine if the City of Owensboro violated the Open Records Act by failing to respond in writing to Mr. Smeathers' request. For the reasons set forth below, and assuming the facts to have been fairly and accurately presented by Mr. Smeathers, we conclude that the City violated the Act.


This Office has repeatedly held that a public agency's response is insufficient under the Open Records Act if it fails to advise the requesting party whether the document exists.

OAG 86-38; OAG 90-26; OAG 90-69. In OAG 86-38, at page 3, we construed the obligation of the agency relative to a request to inspect documents, noting:


KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested. If the documents exist and inspection is denied, you should list each document which the city will not permit the requesting party to inspect and state how the exception to public inspection relied upon applies to the particular document withheld from inspection.


Echoing this view, in OAG 90-26, at p. 4, we categorically stated, "If a record of which inspection is sought does not exist, the agency should specifically so indicate."


This Office has also recognized that an agency cannot furnish records which it does not have in its possession. OAG 83-111; OAG 87-54; OAG 88-5. As a corollary of this proposition, we recognized that it is not our duty to investigate in order to locate documents which the requesting party maintains exist, but which the public agency states do not exist. OAG 86-35. However, we are unable to discharge our duty under the open records statutes, i.e., to review an agency denial and issue a written opinion stating whether the agency acted properly, if the agency does not provide an adequate response to the request.


The procedural requirements of the Open Records Act are not mere formalities, but are an essential part of the prompt and orderly processing of a records request. KRS 61.880(1) imposes certain duties and obligations on a public agency which has received a request for records under the Act. That statute provides:


Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of

any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final action.


The City of Owensboro violated the Open Records Act by failing to respond to Mr. Smeathers' request in writing. Although the City verbally notified him that his request would not be honored, this response was deficient. The City's written denial should have contained a statement that the requested records do not exist (assuming, of course, that they do not). The City of Owensboro is directed to immediately respond in writing to Mr. Smeathers' request, and to advise him whether the records identified in his request exist.


The City of Owensboro may challenge this decision by initiating action in the appropriate circuit court. 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.















Distributed to:


Hon. David Fowler, City Attorney

City of Owensboro

P. O. Box 847

Owensboro, KY 42302


Mr. Bryan Smeathers

715 Ky. Pkwy. 1H

Owensboro, KY 42301