June 19, 1996

In re: Wallace Morgan/City of Mayfield


This matter comes to the Attorney General on appeal from the City of Mayfield's response to two complaints made by Wallace Morgan relating to records maintenance and access. On separate occasions, Mr. Morgan asked the Mayfield city clerk about the existence of records reflecting the expenditure of public funds. Mr. Morgan first requested access to minutes and ordinances authorizing the mayor's expense allowance. He subsequently asked for minutes and ordinances authorizing council members to receive the same medical benefits as city employees.

On behalf of the city, Mike Curry, city clerk, responded to Mr. Morgan's requests. With respect to the mayor's expense allowance, Mr. Curry stated that he was unable to locate any document authorizing same. He explained that the allowance is “more than likely discussed as a part of the total budget with particular line items not having to be approved separately . . . the Mayor's travel together with his expense account is included in Travel-meals and Per Diem which was approved along with other items in the budget.”

In response to Mr. Morgan's request for records authorizing council members to receive the same medical benefits as city employees, Mr. Curry advised:

. . . Council members are employees of the city and are afforded the same benefits as far as insurance is concerned due to the fact that they are employees of the city. I have researched the ordinances and have not been able to establish exactly when city employees were first provided with an opportunity for health insurance.

The individual cost of coverage depending upon the type of coverage required is not in list form. We will be happy to answer request for inspection of any open records that you might want to see in order for you to compile this information.

If you would like to examine the City Ordinances and or Minutes in order to try and find answers to your questions, we will be more than happy to provide you with the records for inspection during our regular business hours which are from 8:00 a.m. until 4:30 p.m. Monday through Friday. Of course the records may not be taken from the premises.

Dissatisfied with the city's response, Mr. Morgan initiated two open records appeals.

In his first letter of appeal, Mr. Morgan asks that this office render an opinion on the question of whether the mayor of a third class city can properly receive an expense allowance in addition to his salary. Assuming that the mayor is entitled to an expense allowance, he asks whether the city should maintain a record authorizing same. In a separate letter of appeal, he asks that this office determine if city council members are entitled to the same medical benefits that city employees generally receive. Again, assuming that they are, he asks if records relating to coverage are subject to public inspection.

Because Mr. Morgan's appeals raise common issues, we consolidate them for purposes of rendering an open records decision. We restrict our review to those issues arising under KRS 61.870 through KRS 61.884. Mr. Morgan's questions concerning the propriety of the mayor's expense account, and council members' medical benefits, are not cognizable under the Open Records Act. The issue in this appeal is whether the City of Mayfield violated the Act in its responses to Mr. Morgan's request. For the reasons set forth below, we conclude that the city did not violate the Act.

This office has consistently recognized that the Open Records Act does not empower the Attorney General to order the creation of records. Nor does the Act require agencies to create records. See OAGs 78-231, 79-547, 80-308, 82-234, 83-111, 89-32, 89-66. [1] In 95-ORD-48, the Attorney General reevaluated this longstanding principle, in light of recent amendments to the law, and expressly declined “the invitation to invade the prerogative of public agencies in determining, `in accordance with standards, rules and regulations prescribed by the Department for Libraries and Archives,' what records they must create. KRS 171.640.” Thus, we have affirmed the principles articulated in OAG 78-231, and subsequent opinions, relative to records creation, and concluded that the Attorney General cannot order an agency to create records, or declare its failure to do so a subversion of the intent of the Open Records Act.

As a corollary of this proposition, we have often noted that a public agency cannot afford a requester access to nonexistent records. OAGs 83-111, 87-54, 88-5, 91-112, 91-203. In the absence of evidence to the contrary, we assume the truthfulness of Mr. Curry's assertion that no record or records exist which satisfy Mr. Morgan's request. Nevertheless, the city has extended an offer to Mr. Morgan to conduct an on-site inspection of records which might contain the information he seeks. The Open Records Act does not require more. The City of Mayfield's response was proper insofar as an agency cannot make available for inspection a document which does not exist. Consistent with the principles articulated in 95-ORD-48, we do not render an opinion on the issue of whether documents should exist authorizing the mayor's expense account and medical benefits for members of the city council.

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.






Distributed to:

Mike Curry

City Clerk

City of Mayfield

211 East Broadway

Mayfield KY 42066

Walter Morgan

917 South 10th Street

Mayfield KY 42066

S. Boyd Neely, Jr.

Neely & Brien

238 North 7th Street

P. O. Box 708

Mayfield KY 42066-0708


[1] For example, in OAG 78-231 this office stated, “[A] public agency is not required to create a document which does not already exist.”