June 30, 1997

In re: Akles Wynn/Harlan County Health Department

Open Records Decision

This is an appeal from the Harlan County Health Department's response to Ackles Wynn's May 16, 1997, request for a copy of "the permit for the disposal of septic tank pumpings on property located on Highway 38 (near Evarts) on the site of the old (former) Verda drive-in movie theatre, adjacent to Verda elementary school." The question presented in the appeal is whether the Department violated the Open Records Act in orally denying Mr. Wynn's request on the basis that no permit exists because none is required. For the reasons which follow, we find that the Department did not violate the Act in denying the request, insofar as it cannot make available for inspection a record which does not exist, but that its failure to respond to the request in writing violated KRS 61.880(1).

This office has long recognized that a public agency cannot afford a requester access to a record which does not exist. See, e.g., OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17. We have also recognized that it is not our duty to investigate in order to locate documents which do not exist or have disappeared. OAG 86-35. Thus, at page 5 of OAG 86-35, we observed, "This office is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the party seeking to inspect such documents."

Nevertheless, since 1994, when the Open Records Act was amended, this office has applied a higher standard of review relative to denial based on the nonexistence of a record. See, e.g., 94-ORD-142. In order to satisfy its statutory burden of proof, a public agency must, at a minimum, offer some explanation for the nonexistence of the record. The Harlan County Health Department maintains that under authority of KRS 224.223(3), (4), and (5), it is not required to issue a permit for a disposal site. Our review of the statute discloses that KRS 224.223 was renumbered in 1991, and is now found at KRS 211.972. That statute provides:

No person shall engage in the business of servicing or maintaining sewage pretreatment units, grease traps, or holding tanks, or the transporting of sewage sludge from those facilities within the Commonwealth of Kentucky without being licensed and bonded as hereinafter provided.

Although KRS 211.974, formerly codified as 224.225, contains exceptions from the general licensing requirement for a property owner who cleans his own pretreatment unit, a municipality which services a public sewage treatment facility, and a master plumber licensed by the state, the cited recodified provision does not contain a subsection (3), (4), or (5). Accordingly, we are unable to determine whether the Department has established an adequate basis or explanation for the nonexistence of the requested record. For this reason, we have referred this matter to the Department for Libraries and Archives for a determination whether additional inquiries are warranted under KRS 171.640, requiring adequate and proper documentation of essential transactions of an agency.

Ultimately, of course, we cannot afford Mr. Wynn the relief he seeks, namely access to the permit for disposal of sewage sludge on property located on Highway 38. We cannot require the disclosure of a record which was never created. Nor can we find, as a matter of law, that the Harlan County Health Department violated the Open Records Act by failing to allow inspection of a record which does not exist. Nevertheless, we urge the Department to reevaluate its policies under the Act to insure compliance with future requests.

In closing, we note that the Department's verbal response to Mr. Wynn's original open records request did not satisfy the requirement of the statute. 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.

As this office has frequently recognized, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." And, as we noted in OAG 90-79, at page 3, "No matter how the public agency views the merits of the request it must respond in writing and in a timely and proper manner." This particular appeal underscores the need for a written record, consisting of the request letter and agency response, formally documenting the actual exchange between the parties. Absent such a record, this office is severely disadvantaged in adjudicating the dispute. The Harlan County Health Department should bear these observations in mind in processing all open records requests.

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

Amye L. Bensenhaver

Assistant Attorney General


Distributed to:

Ackles Wynn

Route 1, Box 333

Evarts KY 40828

Danny Davis

Environmental Supervisor

Cumberland Valley District Health Dept.

P. O. Box 158

Manchester KY 40962

Herman G. Johnson

Public Health Director

Cumberland Valley District Health Dept.

P. O. Box 158

Manchester KY 40962

Richard Belding, Director

Public Records Division

Department for Libraries and Archives

P. O. Box 537

Frankfort KY 40602