May 20, 1994
IN RE: Dick Moore/City of Owensboro
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Mr. Dick Moore to the City of Owensboro on March 4, 1994. Mr. Moore requested a copy of the lease agreement between RiverPark Center, Inc. and the International Bluegrass Music Association, Inc. The City of Owensboro responded to Mr. Moore's request in a letter dated March 7, 1994, advising him as follows:
We cannot honor your open records request dated March 4, 1994, since the document you seek to inspect is not in the custody of the City of Owensboro.
If this document exists at all, it is probably in the custody of RiverPark Center, Inc., and you should direct any future inquires[sic] to that entity.
In his letter of appeal to this Office, Mr. Moore notes that the management and sublease agreement between RiverPark Center, Inc. and the City of Owensboro states, at Section 10, that the Center's manager "shall provide the City and the Trustee with a copy of any . . . sublease of the Leased Premises, or any portion thereof, within thirty (30) days after the delivery of any assignment or sublease." It is Mr. Moore's position that the City is obligated, under the terms of the management and sublease agreement, to maintain a copy of any sublease of the Center by RiverPark Center, Inc. In support of this argument, he attaches a copy of the agreement itself, two
newspaper articles documenting the cooperative efforts of the RiverPark Center and the International Bluegrass Music Association, along with his written request, and the City's written denial.
We are asked to determine if the City of Owensboro acted consistently with the Open Records Act in its response to Mr. Moore's request. For the reasons set forth below, we conclude that the City's response was consistent with the Act.
KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. 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.
In the event the agency does not have custody of the record, but knows where it may be located, KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public records requested, such person shall so notify the applicant and shall furnish the name and location of the custodian of the public record, if such facts are known to him.
The City of Owensboro fully complied with these provisions by responding in writing, and within three business days, to Mr. Moore's request, by advising him that the record,
if it exists, is not in the City's custody, and by notifying him where the record might be obtained.
This Office has long recognized that a public agency cannot furnish access to documents which it does not have or which do not exist. See, e.g., OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203. A request for such documents is moot. OAG 88-44. We have also 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. As we observed in OAG 86-35, at page 5, "This Office is a reviewer of the course of action taken by a public agency and not a finder of documents or possible documents for the party seeking to inspect such documents." We believe that OAG 86-35 is dispositive of the issues raised in this appeal. In the absence of evidence to the contrary, we must assume the truthfulness of the City's assertion that it does not have such a record in its custody.
The Open Records Act regulates access to public records, and not records management. OAG 91-220; 92-ORD-1274; 93-ORD-10; 93-ORD-23; 93-ORD-51; 93-ORD-55; 93-ORD-71; 93-ORD-75; 93-ORD-95. Our decisions are, in general, limited to two questions: Whether the public agency has in its possession the document requested, and if it does, whether the document is subject to public inspection. OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-220. Here, the City properly advised Mr. Moore that it did not have custody of the disputed document. The question of whether a document should exist is not cognizable under the Open Records Act. 94-ORD-52.
Mr. Moore 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.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. David Fowler
City of Owensboro
P. O. Box 847
Owensboro, KY 42302
Mr. Dick Moore
2116 Griffith Pl. W.
Owensboro, KY 42301