April 19, 1995

In re: Dave Baker/Franklin County Judge/Executive


This matter comes to the Attorney General on appeal from the Franklin County Judge/Executive's denial of Mr. Dave Baker's request to review mileage logs and reimbursement sheets for the county judge/executive's office.

On February 28, 1995, Mr. Baker, Staff Writer, The State Journal, requested copies of the following information:

- All mileage logs, receipts, and documen- tation for reimbursement for mileage for the county judge-executive's office for the months of February 1995; December 1994; and November 1994.

- All mileage logs, receipts, and documentation for reimbursement for the county judge-executive's office for your length of term in office for the months prior to June 1993.

In his letter to Franklin County Judge/Executive Bob Arnold, Mr. Baker indicated that as to the second listed item, Judge Arnold had twice denied his request, orally stating those records were inaccessible because of asbestos removal work and restoration of the county courthouse where the records are stored. Mr. Baker further indicated that he renewed his request for the records approximately two weeks prior to the letter after having personally walked into the room where the county records are stored.

On March 3, 1995, Judge Arnold supplied copies of expense vouchers for December and November, 1994. He stated that there were no expense vouchers for February, 1995, for mileage. He further responded that, under previous requests, Mr. Baker had been furnished with all records available, thus his second request could not be furnished.

In his appeal to this office, Mr. Baker states that he had been provided with all mileage logs and reimbursement sheets which he requested except for logs prior to 1993. He states that Judge Arnold informed him several times orally that these records were in the old jail, which, at the time, was closed due to the removal of asbestos in the courthouse building. Mr. Baker, in his letter of appeal, states that in mid-February he and the courthouse renovation architect walked through the old jail and the room holding the county's records. The asbestos removal was complete. As a result, he renewed his February 28, 1995, open records request which was denied and is the subject matter of this appeal.

On March 23, 1995, we requested Judge Arnold, under authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, to provide us with additional documentation and information regarding all mileage logs prior to June, 1993, and for substantiation for the agency's denial of the open records request.

On March 28, 1995, Judge Arnold responded to our request, stating:

In regard to Mr. Baker's statement that he was in the room where county records are stored, he was in fact in the room where County Clerk and PVA records are stored. In regard to his request for mileage logs, receipts and documentation for reimbursement records prior to June 1993, those records do not exist.

We are asked to determine whether these records should be made available for inspection.

It is the decision of this office that the Franklin County Judge/Executive properly denied Mr. Baker's request to inspect the mileage logs for the period of time prior to June, 1993, on the basis that those records do not exist. This office has long recognized that a public agency cannot furnish access to documents which it does not have, or which no longer exist. 94-ORD-41.

We have also recognized that it is not the duty of the Attorney General to investigate in order to locate documents which the requesting party maintains exist, but which the public agency states do not exist. 93-ORD-51.

However, since mileage logs, receipts and documentation for reimbursement records prior to June, 1993, would involve the expenditure of public funds, a question is raised as to, if they did exist, why they no longer exist. "[T]o provide accountability of [its] activities," the Franklin County Judge/Executive's Office is "required to manage and maintain [its] records according to the requirements" of the Open Records Act, KRS 61.870 - 61.880, the State Archives and Records Act, KRS 171.410 - 171.740, and the Information Systems Act, KRS 61.940 to 61.957. KRS 61.8715. The General Assembly has thus recognized that there is an "essential relationship" between these statutes. KRS 61.8715.

Until July 15, 1994, the State Archives and Records Act, codified at KRS 171.410, tracked a parallel path to that of the Open Records Act. Those paths now converge. Under the provisions of the Archives and Records Act, "[t]he head of each state and local agency shall establish and maintain an active continuing program for the economical and efficient management of the records of the agency." KRS 171.680.

To repeat, we make no finding that the agency violated the Open Records Law. However, it is assumed that the requested records, which would have involved the expenditure of public funds, once existed.

Accordingly, we have referred this matter to the Department of Library and Archives, Public Records Division, for a determination of whether the Franklin County Judge/Executive's Office's records management program is consistent with KRS Chapter 171 relative to its duty to manage and preserve its public records.

Mr. Baker and the Franklin County Judge/Executive's Office 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 in circuit court, but should not be named as a party in that action or in any subsequent proceedings.






Distributed to:

Bob Arnold, Judge/Executive

Franklin County Fiscal Court

313 West Main Street

Frankfort, KY 40601

Dave Baker, Staff Writer

The State Journal

P.O. Box 368

Frankfort, KY 40602

Mr. Richard N. Belding, Director

Public Records Division

Department for Library and Archives

300 Coffee Tree Road

P.O. Box 537

Frankfort, KY 40602-0537