October 30, 1996

In re: Ron L. Walker, Jr./Knott County Board of Education

Open Records Decision

This matter comes to the Attorney General on appeal from the actions of the Knott County Board of Education in response to the open records requests of Mr. Ron L. Walker, Jr., Esq., to inspect public records relating to the Board's Lease Agreement with Lotts Creek Community School, Inc.

In his letter of appeal to this office, Mr. Walker states that he submitted his original open records request on July 15, 1996 and received two of the six requested documents, i.e., the lease agreement and a related letter, from the Board.

On July 25, 1996 and August 9, 1996, Mr. Walker submitted follow-up requests for copies of the other four requested documents. On September 12, 1996, he sent a letter to the Board stating that he had received a telephone call from the Board's attorney advising him that the Board was in the process of obtaining the requested information. However, as of the date of the September 12 letter, he had not received any updates or the requested documents.

In his letter of appeal, dated October 2, 1996, Mr. Walker appeals the failure of the Board to provide an appropriate response to his follow-up open records requests of July 25, August 9, and his letter of September 12. He states that he has received neither the remaining four requested documents nor an explanation as to their existence or otherwise. He further states that it would appear that the documents are essential to the terms of the lease and should be retained in close proximity thereto.

On October 3, 1996, this office notified the Board that Mr. Walker had initiated an open records appeal in this matter. On that date, we sent a “Notification of Receipt of Open Records Appeal” and enclosed a copy of Mr. Walker's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, the Board provided this office with a response to the issues raised in the appeal.

Mr. James E. Pack, Superintendent, Knott County Schools, advised this office that “[c]opies of documents requested by Ron Walker, Jr. and which could be located were sent. All other documents either do not exist or cannot be located.”

On October 25, 1996, the undersigned contacted Mr. Walker by telephone to determine if he had received all the records requested. Mr. Walker indicated that all he had received was the lease agreement and the one letter. He had received no other response as to the other four requested documents.

We are asked to determine on appeal whether the Board's actions in response to Mr. Walker's open records requests were in violation of the Open Records Act. For the reasons which follow, we conclude that the Board's actions were procedurally deficient and substantively correct in part and incorrect in part. Moreover, because this appeal raises records management issues, we have referred it to the Department of Libraries and Archives for a determination as to whether the Board may have violated the provisions of KRS Chapter 171, and in particular those statutes relating to records retention and recovery.

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 Board failed to respond to Mr. Walker's requests in writing, and within three business days, its actions constitute a procedural violation of the Open Records Act. To date, the Board has failed to notify Mr. Walker of the disposition of his requests related to the existence or whereabouts of the other requested records. We urge the Board to review the Open Records Act, particularly the cited provision, to become familiar with the requirements of the Act so that errors in responding to open records requests in the future may be avoided.

As to the substantive issue, the Board complied with the Act to the extent it provided Mr. Walker with two of the six requested documents. Moreover, the Board properly denied access to records which do not exist. This office has consistently recognized that a public agency cannot furnish access to documents which it does not have or which do not exist. OAG 83-111; 94-ORD-65; 96-ORD-163.

However, since the other requested records, which Mr. Walker contends appear to be “essential to the terms of the lease,” may relate to the terms of the Board's Lease Agreement with Lotts Creek Community School, Inc., a question is raised as to, if they did exist, why they no longer exist or could not be located. “To provide accountability of [its] activities,” the Board is “required to manage and maintain [its] records according to requirements” of the Open Records Act, KRS 61.870 - 61.884, 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.

We make no finding that the agency violated the Open Records Act as to this issue. However, it is assumed that the requested records, which may relate to the lease agreement, once existed.

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

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:

Ron L. Walker, Jr.

Brooks & Fitzpatrick

183 North Upper Street

Lexington KY 40507

James Pack


Knott County Board of Education

P. O. Box 869

Hindman KY 41822