NOT TO BE PUBLISHED 

93-ORD-95

August 16, 1993

IN RE: Dave Baker/City of Frankfort Police Department

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the actions of the City of Frankfort Police Department in responding to Mr. Dave Baker's July 12, 1993, request to inspect all documents pertaining to the City's D.A.R.E. program expenses. On July 15 Mr. Baker received a computer printout of expenses and salaries of officers participating in the program, but was not afforded access to the actual receipts or vouchers. He indicates that since that date he has made repeated inquiries about these records, but has received no response. Mr. Baker is a staff writer for The State Journal, and his request was made under the Open Records Law.

On July 28, this Office contacted the City of Frankfort Police Department to ascertain the status of Mr. Baker's request. In response, Chief Ted W. Evans advised us that the Police Department "does not retain original receipts, vouchers, etc., regarding expenditures . . . ." Accordingly, the Department could only provide Mr. Baker with "computer records . . . use[d] to track expenditures for budgetary purposes." He noted that the original receipts and vouchers could be obtained from the City's Finance Department, where they are forwarded for payment. Additionally, he noted that as custodian of records, he had received no subsequent requests or inquiries from Mr. Baker. In closing, Chief Evans observed that the Department would not knowingly impede lawful access to public records in its possession, but "the record must be in [its] possession in order to grant access to it."

In his letter of appeal to this Office, Mr. Baker complains that "no efforts [are] underway to comply with this

request," and expresses concern about "the destruction of some of these documents." He asks that the Attorney General review the actions of the City of Frankfort Police Department and issue a decision resolving this dispute. For the reasons set forth below, we conclude that the Department's response to his request was partially consistent and partially inconsistent with the Open Records Act.

This Office has 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 91-112; OAG 91-220. In its July 15 response to Mr. Baker's request, the Department furnished him with all existing computer records which satisfied his request. This was a proper response to the extent that the Department could not provide access to records which it did not have.

When confronted with a request to inspect public records, an agency must address two questions: Whether it has the documents requested, and if it does, whether the documents are subject to public inspection. The Department did not have the original receipts and vouchers because they had been turned over to the City's Finance Department for payment.

The Open Records Act regulates access to public records, and not records management. Our decision must be limited to the question arising under KRS 61.870 to KRS 61.884. Simply stated, that question is: Does the public agency have the documents in its possession at the time of the requests? OAG 83-111; OAG 87-54; OAG 88-5. The Department's response was sufficient and proper under the Open Records Act, since it did not have custody of the original receipts and vouchers.

Nevertheless, the Department erred in failing to advise Mr. Baker that the records could be obtained from the City Finance Department. KRS 61.872(4) provides that if an application for records is sent to someone who does not have custody or control of the requested records, the person who receives the application must notify the applicant of that fact and provide him or her with the name and location of the custodian of the records, if known. See e.g., 93-ORD-93 (holding that if the person receiving the request is not the official custodian of the record, he is obligated to so notify the applicant and furnish the applicant with the name and location of the custodian, if such facts are known to him). We

urge the Department to review the cited provision to insure that future responses conform to the Open Records Law.

With respect to Mr. Baker's concern about the destruction of documents it should be noted that 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 Law. There is no proof, in the instant appeal, that the disputed records were concealed or destroyed for this or any other reason. Such evidence, if it exists, should be presented to the local prosecutorial authorities, who may proceed to a determination of this matter. The Attorney General is not, however, empowered to render a decision on this question in an open records appeal.

Mr. Baker and the City of Frankfort Police Department 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

jgh/1035

Distributed to:

Mr. Ted W. Evans

Chief of Police

City of Frankfort Police Department

315 West Second Street

P. O. Box 697

Frankfort, KY 40602

Mr. Dave Baker

Staff Writer

The State Journal

321 West Main

P. O. Box 368

Frankfort, KY 40602