September 30, 1996

In re: Gary Osborne/Finance and Administration Cabinet

Open Records Decision

This matter comes to the Attorney General on appeal from the Finance and Administration Cabinet's response to Mr. Gary Osborne's open records request for a copy of any final determination of any violations for the previous five year period pursuant to KRS Chapters 136, 139, 141, 337, 338, 341 and 342 that apply to Aladdin Electric Inc.

In his letter of appeal, Mr. Osborne states that he has not received a response to his open records request and asks this office for assistance in requiring the public agency to comply with the Open Records Act.

After receipt of the letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Karen Powell, General Counsel, Office of Legal and Legislative Services, Finance and Administrative Cabinet, provided this office with a response to the issues raised in this appeal. We have been advised that a copy of this response has been sent to Mr. Osborne. In her response, Ms. Powell states that the failure of the Division for Contracting to respond to Mr. Osborne's request was due to a misunderstanding. She explains that Mr. Osborne had also requested that the Division investigate Aladdin Electric, Inc., and the Division believed the open records request to be part of the investigation request.

Ms. Powell states that the only information relating to such violations that the Finance Cabinet has relates to the “Vendor Report of Prior Violations of KRS Chapters 136, 139, 141, 337, 338, 341, and 342” which is part of every bid package submitted in response to construction invitations to bid. This information only became part of the bid package in 1994, and would not be available for the entire five year period requested. She indicates that since 1994, Aladdin Electric, Inc. has not submitted a response to an invitation for bid to the Finance and Administrative Cabinet. Thus, the Cabinet has no records of the requested violations.

We are asked to determine if the Finance and Administration Cabinet acted in accordance with the Open Records Act. For the reasons which follow, we conclude that the actions of the Cabinet were in substantial compliance 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 agency action.

Because the Cabinet failed to respond to Mr. Osborne's request, in writing and within three business days, its actions constituted a procedural violation of the Open Records Act. However, this violation is mitigated by the fact that the Cabinet subsequently advised Mr. Osborne that the agency did not have the records requested and explained the nature of the type of records he was seeking.

This office has consistently recognized that a public agency cannot furnish access to documents which it does not have or which do not exist. 96-ORD-190; 94-ORD-65. Accordingly, as to the substantive issue, it is the decision of this office that the response of the Cabinet was consistent with the Open Records Act.

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.

A. B. Chandler III

Attorney General

James M. Ringo

Assistant Attorney General


Distributed to:

Gary Osborne

International Brotherhood of Electrical Workers

I.B.E.W. Local 1701

2911 W. Parrish Avenue

Owensboro 42301

Karen Powell

General Counsel

Office of Legal and Legislative Services

Finance and Administration Cabinet

Capitol Annex

Frankfort KY 40601