June 7, 1996

In re: Robert Landrum/Commonwealth's Attorney, 48th Judicial Circuit


This appeal originated in a request for public records submitted by Robert Landrum to Morris Burton, Commonwealth's Attorney for the 48th Judicial Circuit, on January 16, 1996. Mr. Landrum requested a copy of the “report on your office's findings in the investigation of the administration of Kentucky State University when Dr. John T. Wolf, Jr. served as President from July 1, 1990 to October 18, 1991.” Mr. Burton responded to Mr. Landrum's request in a letter dated May 24, 1996, advising him as follows:

[N]o report or findings have ever been prepared in connection with the said investigation. The matter was resolved through conversations between my office and the Kentucky State Police.

We are asked to determine if the Commonwealth's Attorney acted consistently with the Open Records Act in denying Mr. Landrum's request. For the reasons set forth below, we conclude that the Commonwealth's Attorney's response, although procedurally deficient, was substantively correct.

We begin by noting that the Commonwealth's Attorney's response was inconsistent with the procedural requirements of the Open Records Act. KRS 61.880(1) 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 agency action.

The Commonwealth's Attorney's response to Mr. Landrum's January 16, 1996, request was issued on May 24, 1996, approximately four (4) months after the statutory deadline, and then only at the prompting of this office. We urge the Commonwealth's Attorney to review KRS 61.880(1) to insure that future responses conform to the Open Records Act.

Turning to the substantive issue in this appeal, we find that the Commonwealth's Attorney properly denied Mr. Landrum's request. At page four of 93-ORD-51, this office recognized that a public agency cannot afford a requestor access to a document that does not exist, or which it does not have in its possession or custody. In general, 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.

The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized “an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . .” KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe this appeal warrants additional inquiries. Because the matter was resolved through conversations, the Commonwealth's Attorney does not have the records Mr. Landrum seeks.

In the absence of evidence to the contrary, this office has no reason to doubt the Commonwealth's Attorney statement that the documents requested are non- existent. The response of the public agency was proper and consistent with the provisions and requirements of the Open Records Act insofar as the agency cannot make available for inspection a document which it does not have in its possession or custody.

A party aggrieved by this decision may appeal it 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 proceeding.






Distributed to:

Robert K. Landrum

317 Chippendale Circle

Lexington, Kentucky 40517

Morris Burton

Commonwealth's Attorney

Courthouse Annex

315 West Main Street

Frankfort, Kentucky 40601