January 12, 1994

In Re: Bryan Smeathers/City of Owensboro


This matter comes to the Attorney General as an apparent appeal by Bryan Smeathers as a result of his attempts to obtain copies of various documents from the city of Owensboro.

In a letter to the city clerk, Bryan Smeathers requested six categories of documents including copies of minutes of meetings and copies of the offer and counteroffer to purchase a particular building.

Ms. Carol Blake, City Clerk of the city of Owensboro, replied to Mr. Smeathers in a letter dated November 30, 1993. She advised him that she was sending a copy of the minutes of the November 16, 1993 meeting of the Owensboro Municipal Improvement Corporation. She further stated that there is no written material concerning the board of commissioners meeting authorizing the mayor to purchase the building in question and there is no correspondence concerning the offer and counteroffer to purchase the building.

In a letter dated December 9, 1993, City Attorney David C. Fowler advised Mr. Smeathers in part as follows:

On the evening of December 7, 1993, you tendered a hand written request for all 'closed meeting minutes about the Anderson property and museum.' Please be advised that it will be impossible to comply with your request since no minutes were kept on these closed meeting discussions. All normal action by the Owensboro Board of Commissioners with respect to the acquisition of the S. W. Anderson property was taken in open session, and both the conduct of the closed meetings and the formal vote of each of the board members are reflected in the minutes of the November 16 commission meeting which have been previously provided to you.

In his letter to this office, received December 13, 1993, Mr. Smeathers makes references to the Open Meetings Act (KRS 61.805 to KRS 61.850) and alleged violations of those provisions. This office is not treating Mr. Smeathers' letter as an appeal under the Open Meetings Act as he has not followed the requirements set forth in KRS 61.846(1) and (2) relative to the preparation and presentation of an appeal under the Open Meetings Act. Thus, this decision will not address any of the complaints involving the Open Meetings Act.

One of Mr. Smeathers' complaints is that records should have been kept concerning the closed sessions of the meetings and he asks why minutes of the closed sessions were not maintained.

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 enclosed. Mr. Smeathers was advised that minutes of the closed sessions were not kept. In addition, in OAG 81-387 and OAG 87-16, this office said that the minutes of a properly conducted executive or closed session of a meeting of a public agency need not be made available for public inspection or even recorded to the extent that doing so would defeat the purpose of conducting the closed session.

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. The Open Records Act regulates access to public records and not records management. The basic issue presented in this appeal is whether the public agency had the documents in its possession at the time the request was made. The city advised that it did not have the records in question as no such records exist because no minutes were kept in regard to the closed or executive session. That is a proper response to a request for documents under the Open Records Act.

Mr. Smeathers also questions the validity of the response by the city attorney "under the authority and direction of Mayor Adkisson" as Mr. Smeathers maintains that the city clerk is the official custodian of municipal records.

The Open Records Act in KRS 61.870(3) defines "official custodian" as:

[T]he chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control.

We do not know the particular city officer or employee who has been designated the "official custodian" of records for the city so we cannot conclude that the mayor was not the proper party to respond to a request for documents under the Open Records Act. See OAG 80-462, copy enclosed, at page four, dealing with the "official custodian."

Mr. Smeathers also complains of the city's failure to furnish documents relative to offers and counter offers. The city advised that no such records exist and that is a proper response to the extent that the city could not provide access to records which it does not have. Again, see 93-ORD-95.

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

David C. Fowler, Esq.

City Attorney

P.O. Box 847

Owensboro, Kentucky 42302