NOT PUBLISHED 

93-ORD-129

November 4, 1993

IN RE: William Ingram/Fayette County Board of Education

OPEN RECORDS DECISION

This appeal originated in a request for records submitted by Mr. William Ingram to the Fayette County Board of Education on March 25, 1993. Mr. Ingram requested various records relating to "the closing of Bluegrass School and the change in educational placements." He indicates that Dr. Eve Profitt, Director of the Department of Instructional Support Services, denied his request on two occasions, advising him that no records exist which satisfy his request. Attached to Mr. Ingram's appeal are his original request, a subsequent request, and two letters from Dr. Profitt.

The first of those letters suggests that some of the records he sought were released to him on April 19, 1993. With respect to the educational placement issue, Dr. Profitt explained that not all of the information he requested was available but offered an explanation relative to these omissions. She advised him that no records exist which relate to the closing of Bluegrass School because the school "has not been closed, nor has it ever been closed."

The question presented in this appeal is whether Dr. Profitt properly responded to Mr. Ingram's request for records. For the reasons set forth below, we conclude that Dr. Profitt's response was consistent with the Open Records Act.

This Office has frequently 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. In her response, Dr. Profitt

released a number of records to Mr. Ingram, and indicated that the Department does not possess the other records he wished to inspect. This was a proper response. An agency cannot furnish that which it does not have. A request for such documents is moot. OAG 88-44. This Office has also recognized that it is not our duty to investigate in order to locate documents which the requesting party maintains exists, but which the public agency states do not exist. OAG 86-35. As we observed in OAG 86-35, at page 5, "This Office is a reviewer of the course of action taken by a public agency and not a finder of documents or possible documents for the party seeking to inspect such documents."

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. Under the facts presented, Dr. Profitt properly advised Mr. Ingram that the requested records were not available because Bluegrass School has not been closed.

If Mr. Ingram wishes to review the minutes of meetings at which discussions about establishing new programs at the Bluegrass School were conducted, or any other records of the Fayette County Board of Education, he should address his request to Dr. Marlene Helm, Custodian of Records, Fayette County Board of Education, 701 East Main Street, Lexington, KY 40502.

Mr. Ingram may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Although the Attorney General should be notified of any action against the Fayette County Board of Education, pursuant to KRS 61.880(3), 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/1514

Distributed to:

Dr. Eve Profitt, Ed.D.

Fayette County Public Schools

701 East Main Street

Lexington, KY 40502-1699

Mr. William Ingram

2317 Nancy Lane

Lexington, KY 40505