November 27, 1996

In re: Marcellus L. Mayes/Workforce Development Cabinet, Kentucky Industries for the Blind

Open Records Decision

This matter comes to the Attorney General as an appeal by Marcellus L. Mayes in connection with his request for access to various documents.

In a letter to Beverly Haverstock, General Counsel, Workforce Development Cabinet, dated October 6, 1996, Mr. Mayes requested copies of medical records maintained in his personnel file, copies of a rescinded pre-termination hearing order, and copies of his last six work schedules at the Kentucky Industries for the Blind. In another request Mr. Mayes asked for these same documents as well as copies of “performance appraisals.”

Sue G. Simon of the Workforce Development Cabinet's Office of General Counsel advised Mr. Mayes that all of the requested documents would be made available, upon receipt of payment for the copies, except the copies of the work schedules. Ms. Simon advised in part that, “There are no records responsive to your request for any work schedules[.]”

In his letter of appeal to this office, received October 30, 1996, Mr. Mayes referred to his inability to secure his daily work schedules with the Kentucky Industries for the Blind.

Ms. Simon advised this office in a letter received on November 6, 1996 that the records requested by Mr. Mayes were provided to him in two separate mailings dated

October 23, 1996. In regard to the request for the copies of the work schedules, Ms. Simon said in part:

The request for “two copies of my last six work schedules at the Ky. Industries for the Blind” could not be provided as the Kentucky Industries for the Blind advised that no written employee schedules exist thus there were no documents responsive to that request.

What was said by this office in 94-ORD-140, copy enclosed, and incorporated by reference in this decision is dispositive of the issue presented by this appeal. Rather than repeating verbatim what was said in that decision we will briefly summarize its contents and refer the parties to that decision for a more complete analysis of the question.

As stated in 94-ORD-140 a public agency cannot furnish a copy of a document which does not exist or which it does not have in its possession or custody. Generally, it is not the duty of this office to conduct an investigation in an attempt to locate a document which the requesting party maintains exists but which the public agency states does not exist.

This office said in 94-ORD-140 that 1994 amendments to the Open Records Act recognized an essential relationship between the content of the Open Records Act and KRS 171.410 to KRS 171.740 pertaining to the management of public records. While there may be instances when 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 that this appeal warrants additional inquiries.

The Attorney General has no reason to doubt the statements of personnel in the General Counsel's Office that the requested documents relating to an employee's work schedules do not exist at this time. The response of the public agency was proper and consistent with the provisions and requirements of the Open Records Act in that the public agency cannot make available a document which does not exist or is not 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 shall be notified of any action filed in circuit court, but the Attorney General shall not be named as a party in that action or in any subsequent proceeding.

A. B. Chandler III

Attorney General

Thomas R. Emerson

Assistant Attorney General


Copies of this decision

have been distributed to:

Marcellus L. Mayes

2621 Allston Avenue

Louisville, Kentucky 40210

Sue G. Simon

Office of General Counsel

Workforce Development Cabinet

Capital Plaza Tower, 2nd Floor

500 Mero Street

Frankfort, Kentucky 40601