NOT TO BE PUBLISHED

95-ORD-58

April 5, 1995

In re: Claude T. Barlow/City of Somerset

OPEN RECORDS DECISION

This appeal originated in the submission of a request for public records by Mr. Claude T. Barlow to the City of Somerset, Office of the Mayor. On March 2, 1995, Mr. Barlow requested access to various documents relating to the construction of an apartment building on property bounded by Maplewood Subdivision and Jarvis Avenue, and between Maplewood Drive and Hamilton Lane in Somerset. Having received no response to his request, Mr. Barlow appealed to this office on March 17, 1995.

On or about March 22, 1995, a representative of the Attorney General's Office contacted Mayor James Williams's office to ascertain the status of Mr. Barlow's request. We were advised that the matter had been referred to the City Attorney, Mr. Joe L. Travis. We subsequently contacted Mr. Travis's office, and were advised that no action had been taken on Mr. Barlow's request. The City Attorney agreed to review the request and respond immediately. On March 24, 1995, this office received a copy of Mr. Travis's response to Mr. Barlow dated March 23. In that response, Mr. Travis agreed to release all documents in the City's possession which satisfy Mr. Barlow's request. Although Mr. Barlow requested eight separate categories of records in his March 2 letter, the City released only two records, a building permit dated January 24, 1995, and an untitled, undated, single page document containing a chronology of events apparently relating to the construction of the apartment from December 29, 1994, to February 6, 1995.

The question presented in this appeal is whether the City of Somerset violated the Open Records Act in responding to Mr. Barlow's request. For the reasons set forth below we conclude that although the City's response was procedurally deficient, it complied with the Act to the extent that it released all documents in its possession which satisfied the request.

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 action.

The City of Somerset violated the Open Records Act by failing to issue a written response to Mr. Barlow's request within three business days. The City Attorney offered no explanation for the delay in responding. We therefore find that no factors exist which mitigate this violation. Until the City Attorney was contacted by this office, he had made no apparent effort to comply with the procedural requirements of the Act. We remind the City of Somerset that these procedural requirements "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request."

93-ORD-125, p. 5. We strongly urge the City to bear these observations in mind in responding to future open records requests.

Nevertheless, we find that the response which was issued on March 23, 1995, was substantively correct. Mr. Travis released all records in the City's possession which relate to the construction of the apartment, and which satisfied Mr. Barlow's request. At page four of 93-ORD-51, this office recognized that a public agency cannot afford a requester access to documents which do not exist or which it does not have in its possession or custody. In general, it is not our duty to investigate in order to locate documents which the requesting party maintains exist, but which the public agency states do not exist.

The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records . . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants additional inquiries.

Although the untitled, undated chronology which was sent to Mr. Barlow suggests that there have been several occasions when records might have been generated, for example, on February 3 when the demolition process was begun and a hazardous materials inspection conducted, we have no reason to doubt Mr. Travis's assertion that all records in the City's possession which satisfy Mr. Barlow's request were released. The City's response was proper and consistent with the Open Records Act insofar as it could not make available for inspection documents which apparently do not exist.

The City of Somerset and Mr. Barlow may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

res/376

Distributed to:

Hon. James R. Williams, Mayor

City of Somerset

City Hall, 104 College Street

Somerset, KY 42501

Mr. Claude T. Barlow

110 Maplewood Drive

Somerset, KY 42501

Hon. Joe L. Travis

P.O. Drawer 30

Somerset, KY 42502-0030