April 26, 1996

In re: Mark A. Abner/Wayne County EZ Community, Inc.


This matter comes to the Attorney General as an appeal by Mark A. Abner in connection with his requests to Wayne County EZ Community, Inc. for access to particular documents and materials.

In a letter dated December 6, 1995, Mr. Abner requested access to six categories of documents, materials, and information. The letter was directed to Kenneth Ramsey, Chairperson, Wayne County Empowerment Zone Committee.

B. G. Edwards, Executive Director, Wayne County EZ Community, Inc., responded to Mr. Abner in a letter dated December 7, 1995, and furnished documents and information relative to four of the categories. He furnished copies of the minutes of the Wayne County EZ Industrial Park Sub Committee meeting. “As to the minutes of all other sub-committees within the EZ organization, we suggest you contact the individual Chairperson of these since we do not have those in our possession.” As to the requests for copies of two specific surveys, Mr. Edwards stated that copies of those documents are not “in our possession.”

In his letter of appeal to this office, received December 20, 1995, Mr. Abner complained that the response in several instances stated that “those records aren't in our possession” but he was not told where the documents could be obtained. He cited KRS 61.872(4) in support of his allegation that Mr. Edward's response was deficient and that he should know the disposition of the requested documents.

Mr. Abner has apparently made several requests for documents and records to which Mr. Edwards has responded. In the materials furnished by both parties to this appeal is a copy of a letter from Mr. Edwards to Mr. Abner, also dated December 7, 1995, and dealing with requests for the same two surveys as are involved in this appeal. In this letter Mr. Edwards specifically stated that he does not have copies of the surveys requested but that a Mr. Gregory has copies of those surveys in his possession.

KRS 61.872 deals with a person's right to inspect documents and subsection (4) of that statute provides:

If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.

In numerous opinions and decisions over the years this office has recognized that a public agency cannot afford a requestor access to documents which do not exist. See, for example, 95-ORD-81, copy enclosed, at page seven. There are, however, situations where a record exists or may exist but it is not in the possession of the public agency. Under those circumstances a public agency must comply with the requirements of KRS 61.872(4).

KRS 61.872(4) was amended in 1994. Prior to its amendment the statute required that if the person to whom the request for documents was directed does not have custody or control of those documents that person shall furnish the name and location of the custodian of the public records, if such facts are known to him. The 1994 amendment in part eliminated the phrase “if such facts are known to him” thereby imposing upon the public agency a greater obligation and responsibility to ascertain the location of requested records which it does not have.

In 95-ORD-81, at page six, this office said in part that KRS 61.872(4) compels the public agency not only to notify the requestor that it is not the custodian of the records, but also to furnish him with the name and location of the custodian of the records in question. See also 95-ORD-75, copy enclosed, at page two.

Thus the executive director not only was required to notify the requesting party that he did not have or is not the custodian of the two surveys and the minutes of the other sub-committees requested, but he was also required to furnish the requesting party with the name and location of the custodian or holder of the requested records.

It is, therefore, the decision of the Attorney General that under KRS 61.872(4), as amended in 1994, the public agency is not only obligated to communicate to the requesting party, if applicable, that it does not have possession, custody, or control or particular records requested, but it is also required to furnish the requesting party with the names and locations of the persons or entities holding those records and documents. Failure of the public agency to satisfy all the required components of KRS 61.872(4) constitutes a violation of 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 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.






Copies of this decision

have been delivered to:

Mark A. Abner

Rt. 2, Box 3220

Monticello, Kentucky 42633

B. G. Edwards

Executive Director

Wayne County EZ Community, Inc.

3 Public Square

P.O. Box 817

Monticello, Kentucky 42633-0817