March 20, 1996

In re: Pamela Sapp/Kentucky TECH-Owensboro Campus-Workforce Development Cabinet


This appeal originated in a request for public records submitted by Pamela Sapp to Kentucky TECH-Owensboro Campus. On February 23, 1996, Ms. Sapp, an employee at Kentucky TECH, requested a copy of any notification that was sent to Frankfort regarding her transfer from the Daviess County campus to the Owensboro campus. That request was forwarded to the Workforce Development Cabinet. The Cabinet ultimately responded to Ms. Sapp's request in a letter dated March 1, 1996, advising her as follows:

There are no records which are responsive to your request; therefore, your request is hereby denied pursuant to KRS 61.870(2).

We are asked to determine if the Workforce Development Cabinet acted consistently with the Open Records Act in denying Ms. Sapp's request. For the reasons set forth below, we conclude that the Workforce Development Cabinet's response, although procedurally deficient, was substantively correct.

We begin by noting that the Workforce Development Cabinet'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 Workforce Development Cabinet's response to Ms. Sapp's February 23, 1996, request was issued on March 1, 1996, approximately two (2) days after the statutory deadline. This violation is mitigated by the fact that the request was forwarded to Frankfort for a response. Nevertheless, we urge the Workforce Development Cabinet 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 Workforce Development Cabinet properly denied Ms. Sapp's request. At page 4 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.

See 93-ORD-51, and authorities cited therein.

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 Ms. Sapp's move from the Daviess County campus to the Owensboro campus was classified as a relocation and not a transfer, no written notification was required. Therefore, the Workforce Development Cabinet does not have the records she seeks.

This office has no reason to doubt the Workforce Development Cabinet's statement that the document requested does not exist. 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 challenge it by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General must 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:

Pamela Sapp

Beverly Haverstock

Workforce Development Cabinet