March 31, 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. Among other documents, Mr. Smeathers requested access to "[t]he Museum 'master plan' previously approved by the city as stated in Section 8 of the SUBLEASE made 3-1-94," and "[c]opies of the municipal order and minutes approving the 'master plan'." Although several of the records identified in his request were released to him, Mr. Smeathers was orally advised by City Attorney David Fowler on March 9, 1994, that these records were not available. According to Mr. Smeathers, Mr. Fowler refused to provide a written response stating that the records were not available.


In his letter of appeal, Mr. Smeathers raises a series of questions relative to the City's response to his request. Specifically, he asks:


1. Since the document I requested was specific in nature and is mentioned as a integral part of the lease, shouldn't the document exist and therefore be provided?


2. Why would reference be included in the lease if it did not exist?


3. The city attorney and clerk both refused to provide a written response to the absence of this crucial document which was directed as a result of its inclusion to the sublease. Shouldn't they be required to

make a written explanation as to why this document does not exist?


Our review under the Open Records Act is limited to the last of these questions.


We are asked to determine whether the City of Owensboro violated the Open Records Act by refusing to provide Mr. Smeathers with a written response to his March 3 request for the museum master plan and the municipal order and minutes approving this plan. 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.


In 94-ORD-42, we addressed the same issue which Mr. Smeathers raises in this appeal. There we concluded that the City's refusal to provide him with a written response to his request constituted a procedural violation of the Open Records Act. We directed the City to respond immediately, and in writing, to his request, advising him upon what grounds that request was denied. We believe that 94-ORD-42, a copy of which is attached, is dispositive of the present appeal.


We decline to comment on Mr. Smeathers' assertion that the requested records "should" exist, and therefore "should be provided." 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 61.884. Simply stated, that question is: Does the public agency have the documents in its possession at the time of the request? OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-220. The question of whether a document "should" exist is not cognizable under the Open Records Act.


Mr. Smeathers and 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