TO BE PUBLISHED 

93-ORD-122

October 25, 1993

IN RE: Benny Bailey/Martin Circuit Court Clerk

OPEN RECORDS DECISION

This appeal originated in a request for records submitted by Mr. Benny Bailey to the Martin Circuit Court Clerk on July 25, 1993. Mr. Bailey, an inmate at Eastern Kentucky Correctional Complex, requested all jury lists of the Martin Circuit Court from December 1, 1986, to December 31, 1991. The Martin Circuit Court Clerk, Ms. Carolynn P. Horn, denied his request on September 14, 1993, advising him that the jury lists are not available inasmuch as "Destruction Orders are entered as new Juries are Drawn . . . [and] these records were destroyed."

In his letter of appeal to this Office, Mr. Bailey expresses concern that one or more persons "spend more time on the jury in Martin County than on their regular jobs." Additionally, he believes that several of the jurors are related to the Martin County Commonwealth Attorney. He asks that this Office review the Martin Circuit Court Clerk's actions relative to his open records request, and that we investigate these alleged improprieties.

The question presented in this appeal is whether the Martin Circuit Court Clerk properly responded to Mr. Bailey's request for all jury lists from December 1, 1986, to December 31, 1991. For the reasons set forth below, we conclude that the Clerk's response was consistent with the Open Records Act.

We begin by noting that as a general proposition records of the court are not governed by the Open Records Act.

In Ex parte Farley, Ky., 570 S.W.2d 617, 624 (1978), the Kentucky Supreme Court opined "that the custody and control of the records generated by the courts in the course of their work are inseparable from the judicial function itself, and are not subject to statutory regulation." See also, York v. Commonwealth, Ky.App., 815 S.W.2d 415 (1991). This Office has adopted the reasoning of Ex parte Farley, supra, in a number of opinions. OAG 78-262; OAG 79-174; OAG 80-460; OAG 82-588; OAG 85-9; OAG 91-45; OAG 91-193. Although it is unclear how expansively this holding should be read, it can at least be argued that a jury list is a court record, and therefore not subject to inspection under the Open Records Act.

Assuming for the sake of argument that the lists are considered public records within the scope and meaning of the Act, we believe that Ms. Horn properly advised Mr. Bailey that the jury lists were not available inasmuch as they had been destroyed. 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 88-5; OAG 91-112; OAG 91-220. The Open Records Act regulates access to public records, and not records management. Our decision must be limited to the question arising under the Act. Simply stated, that question is: Does the public agency have the documents in its possession at the time of the request? OAG 83-111; OAG 87-54; OAG 88-5. Ms. Horn's response that the requested records were destroyed and are no longer available was sufficient and proper under the Open Records Act.

It should be noted that the Administrative Procedures of the Court of Justice, Part 2, Section 14, provides that randomized jury lists, and all records and papers compiled in the selection process, shall be destroyed after the lists have been exhausted and all persons selected to serve as jurors have been discharged. Under this rule, the Martin Circuit Court Clerk properly destroyed the 1986 through 1991 jury lists.

The Attorney General is not authorized under the Open Records Act to intercede in matters relating to improperly constituted juries. We therefore respectfully decline to address this issue in the present appeal.

Mr. Bailey may challenge this decision 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 the

circuit court, but he should not be named as a party in that action, or in any subsequent proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

jgh/1472

Distributed to:

Ms. Carolynn P. Horn

Martin Circuit Court Clerk

Martin County Courthouse

Inez, KY 41224

Mr. Benny Bailey, #109323/6AU13

East Ky. Corr. Complex

P. O. Box 636

West Liberty, KY 41472