NOT TO BE PUBLISHED
April 22, 1994
IN RE: Bryan Smeathers/City of Owensboro
OPEN RECORDS DECISION
This matter comes to the Attorney General as an attempted appeal by Bryan Smeathers as a result of his efforts to obtain copies of various documents from the city of Owensboro.
In a letter to the city of Owensboro, dated March 19, 1994, Bryan Smeathers requested three categories of documents. The first category consisted of the names of the twenty parties interested in leasing a particular piece of property. The second involved a copy of the document authorizing the mayor to contact persons about leasing the property and the third concerned copies of documents of the city authorizing the city to sell or lease the property in question.
Ms. Carol Blake, City Clerk of the city of Owensboro, replied to Mr. Smeathers in a letter dated March 22, 1994. She advised him in part that she does not "have any personal knowledge or possession of any documents identifying the names of the '20' parties interested in the South Griffith Avenue museum building." She further advised Mr. Smeathers, "All other information that exists and is in the custody of the City of Owensboro, will be made available for your inspection at City Hall, Monday through Friday, during regular business hours (8 a.m. - 5 p.m.)"
In his letter of appeal to this office, received March 31, 1994, Mr. Smeathers complains about the failure of the city to furnish him with the list of the twenty parties interested in leasing the property in question and the city's lack of records concerning the matter. He next presents a list of questions, presumably for this office to answer, most of which concern public accessibility to and the keeping of various records. He concludes with what he terms an "appeal for open meetings violation."
This office has, in several prior opinions attempted to set forth to Mr. Smeathers the limited role of this office relative to the handling of appeals under the Open Records Act. Our function, as set forth in KRS 61.880(2), is to issue a decision stating whether the public agency violated the provisions of the Open Records Act.
In 94-ORD-5, copy enclosed, at page two, we said in part that the Open Records Act regulates access to public records and does not deal with the management and keeping of records. Under the Open Records Act the key questions are, does the record exist and is it within the custody and control of the public agency, and, if that question is answered affirmatively, whether the record is subject to public inspection or may it be withheld pursuant to one of the statutorily recognized exceptions.
The city clerk advised that she does not have knowledge or possession of any documents concerning the list of the twenty names. Obviously, a public agency cannot afford the requesting party access to records it does not have or which do not exist. The city's response that it does not have knowledge or possession of the records requested is a proper response under the Open Records Act and this office has no reason to doubt the truthfulness of that response.
In 94-ORD-45, copy enclosed, at pages 8-9, we attempted to set forth what must transpire before this office can entertain an appeal and render a decision under the Open Meetings Act (KRS 61.805 to KRS 61.850). Since those events did not take place in this situation, this office will not render a decision relative to the Open Meetings Act.
The city clerk advised Mr. Smeathers in part that all other information that exists and is in the city's custody will be made available for public inspection. As indicated in
94-ORD-55, copy enclosed, that is not a proper response under the Open Records Act. The public agency must state which of the requested records do not exist or are not in the possession or control of the city and which of the records that do exist and are in its possession it will make available for inspection and which records will not be made available and why.
Either Bryan Smeathers or the city of Owensboro or both of them may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. The Attorney General shall be notified of any actions filed in circuit court pursuant to KRS 61.880(3), but he should not be named as a party to those actions or in any subsequent proceedings.
Thomas R. Emerson
Assistant Attorney General
Copies of this decision
have been mailed to:
P.O. Box 2212
Owensboro, Kentucky 42302
David Fowler, Esq.
City Attorney, City of Owensboro
P.O. Box 847
Owensboro, Kentucky 42302