May 21, 1997

In re: Mark F. Sommer/Revenue Cabinet

Open Records Decision

This matter comes to the Attorney General on appeal from the Revenue Cabinet's denial of the open records request of Mark F. Sommer, Esq., in which he requested copies of:

all documents and writings which support an assertion by Revenue Cabinet employees Roy Pfeister, Bill Bode and/or Mark McCallum that Jeff Tafel, an employee of Vencor, Inc., stated during a recently-completed Revenue Cabinet sales and use tax compliance audit that software acquired by Vencor, Inc. from APACHE, Inc. was "as canned as canned can be."

Susan F. Stivers, Esq., Division of Legal Services, Revenue Cabinet, denied Mr. Sommer's request, stating:

Pursuant to KRS 61.878 and under the authority of the official custodian, the Revenue Cabinet hereby denies your request for the requested documents. The denial of your request is based upon an exception to the open records law, KRS 61.878(1)(i), which excludes from the law's coverage the following:

(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency.

Documents, if any, that would meet the description of your request would constitute preliminary drafts, or notes, disclosure of which is prohibited by the statutory provision cited and quoted above.

We are asked to determine whether the Cabinet's denial was consistent with provisions of the Open Records Act. For the reasons which follow, we conclude that the response was inconsistent with the Act and prior opinions of this office.

In OAG 91-101, this office held that a public agency's response is insufficient under KRS 61.880(1) if it fails to advise the requesting party whether the requested record exists. Citing OAG 86-38, we construed the obligation of a public agency relative to a request to inspect documents, noting:

KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested. If the documents exist and inspection is denied, you should list each document which the city will not permit the requesting party to inspect and state how the exception to public inspection relied upon applies to the particular document withheld from inspection.

In the instant case, the Cabinet did not advise the requester as to whether the requested records exist. Thus, the Cabinet's response was inconsistent with the requirements of KRS 61.880(1). Accordingly, the Cabinet should affirmatively advise Mr. Sommer as to the existence or not of the requested records.

We do not mean to suggest that the Cabinet cannot assert that the requested records are properly exempt from disclosure under one of the exceptions set forth in KRS 61.878. However, it is not the function of the Attorney General to make the case for the public agency or speculate whether a particular record exists or may be exempt from disclosure under the Open Records Act. This office's primary function relative to an open records request and a denial by a public agency is to review the denial and determine whether the public agency acted consistently with the provisions of the Open Records Act. OAG 86-32.

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:

Mark F. Sommer

Greenbaum Doll & McDonald

3300 National City Tower

101 South Fifth Street

Louisville KY 40202-3197

Susan F. Stivers

Division of Legal Services

Revenue Cabinet

P. O. Box 423

Frankfort KY 40602-0423