NOT TO BE PUBLISHED
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
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
James M. Ringo
Assistant Attorney General
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
P. O. Box 423
Frankfort KY 40602-0423