NOT TO BE PUBLISHED 

March 2, 1993

93-ORD-23

IN RE: John Cleveland/Letcher County Fiscal Court

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the actions of the Letcher County Fiscal Court relative to Mr. John Cleveland's January 25, 1993, request to inspect and copy the County's Administrative Code. Mr. Cleveland's request was verbally denied by County Judge/Executive Ruben Watts. Judge Watts did not issue a written denial, citing an exception authorizing nondisclosure, nor did he explain how the exception relied upon applies to the record withheld.

This Office has been advised by Mr. Harold Bolling, Letcher County Attorney, that although the County adopted a Code in 1983, only two copies were made, and both have been misplaced. He therefore maintains that no document exists which satisfies Mr. Cleveland's request.

We are asked to determine if the Letcher County Fiscal Court's actions relative to Mr. Cleveland's request were consistent with the Open Records Act. For the reasons set forth below, we conclude that although the Fiscal Court erred in failing to issue a written denial within three business days, its failure to provide Mr. Cleveland with a copy of the Code does not constitute a violation of the Open Records Act inasmuch as no record currently exists which satisfies his request.

KRS 61.880(1) provides, in part:

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Judge Watts' verbal response was technically deficient. He did not notify Mr. Cleveland in writing of the Fiscal Court's decision, nor did he cite an exception authorizing nondisclosure, or otherwise explain his refusal to release the record. We urge Judge Watts to review the relevant provisions of the Open Records Act to insure that future responses conform to the Act.

This Office has, however, consistently recognized that a public agency cannot afford a requester access to records which it does not have, or which do not exist. OAG 83-111; OAG 86-35; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203; OAG 91-220; OAG 92-25; 93-ORD-10. A request for such documents is moot, and obviously cannot be honored. We have also recognized that the Attorney General is not empowered to investigate in order to locate documents which the requesting party maintains exist, but which the public agency states do not exist. As we observed in OAG 86-35, at p. 5:

We believe this opinion is dispositive of the instant appeal.

KRS 68.005(1) requires fiscal courts to adopt county administrative codes. The failure to adopt a code, or to maintain copies of it, are not issues arising under the Open Records Act. The Act governs access to public records, and not records management. We therefore decline to comment on Letcher County's failure to maintain a copy of its Administrative Code.

KRS 61.991(2)(a) establishes a penalty for public officials who willfully conceal or destroy public records with the intent to violate the provisions of the Open Records Act. There is no proof, in the instant appeal, that the disputed

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documents were concealed or destroyed. Such evidence, if it exists, should be presented to the local prosecutor, who may proceed to a determination of this matter. The Attorney General is not, however, authorized to render a decision on this question in an open records appeal.

Mr. Cleveland and the Letcher County Fiscal Court may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

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Distributed to:

Mr. John Cleveland

Coordinator

Letcher County Local Governance Project

Box 307

Blackey, Kentucky 41804

County Judge/Executive Ruben Watts

Letcher County Courthouse

Whitesburg, Kentucky 41858

Hon. Harold Bolling

Letcher County Attorney

P. O. Box 1085

Whitesburg, Kentucky 41858

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