NOT TO BE PUBLISHED
96-ORD-41
February 21, 1996
In re: Sue G. Simon/Department of Military Affairs
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Department of Military Affairs' denial of Sue G. Simon's October 18, 1995, request to inspect various records. Those records are identified as “[a]ll public records related to the request for proposals issued April 6, 1995 by the Department of Military Affairs for vending services at the Kentucky Air National Guard facilities on Grade Lane, Louisville, Kentucky.” Ms. Simon is an attorney employed by the Workforce Development Cabinet, and requested the records on behalf of the Department for the Blind, the state licensing agency for the Randolph-Sheppard vending facility program. The Department submitted an unsuccessful bid for these vending services.
In a response dated October 26, 1995, Lt. Col. Michael J. Van Leuven, Staff Judge Advocate, advised Ms. Simon that because the Department of Military Affairs does not have the records she requested, the Department could not furnish them. He explained:
The information you have requested, if it exists, would probably be in the possession of the Kentucky Air National Guard Club, Incorporated. Further, I believe that said corporation is a private corporation and not under the control of the Kentucky Department of Military Affairs.
Col. Van Leuven suggested that Ms. Simon contact the corporation, or the Air Base Commander, in Louisville.
In her letter of appeal Ms. Simon argues that the enabling statutes for the Department of Military Affairs, found in Chapter 36 of the Kentucky Revised Statutes, “specify the powers and responsibilities which bring this contract bid and award clearly within [the Department's] domain.” It is her position that “the armories are state property and the adjutant general is ultimately responsible for the activities and services offered there.” In a letter to this office dated January 31, 1996, Col. Van Leuven responds that “this appeal only involves the limited issue of providing records which the [Department of Military Affairs] does not have and did not have when Ms. Simon's request was received on or about October 30, 1995.” He reiterates that the request for proposals was issued by the Kentucky Air National Guard Club, Inc., a private corporation, and that the corporation is the most likely repository of these records.
We are asked to determine if the Department of Military Affairs violated provisions of the Open Records Act in denying Ms. Simon's request. For the reasons set forth below, we conclude that the Department's response was consistent with the Act.
KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute 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.
In the event the agency does not have custody of the record, but knows where it may be located, KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public records requested, such person shall so notify the applicant and shall furnish the name and location of the custodian of the public record, if such facts are known to him.
The Department of Military Affairs substantially complied with these provisions by responding in writing, [1] to Ms. Simon's request, by advising her that the records, if they exist, are not in the Department's custody, and by notifying her where the records might be obtained.
Turning to the substantive issues in this appeal, we find that the Department also properly advised Ms. Simon that it does not now, nor did it ever, have custody of the records she requests. This office has long recognized that a public agency cannot furnish access to records which it does not have or which do not exist. See, e.g., OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203. Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records, the Act regulates access to public records. KRS 61.8715. Our decisions in an open records dispute are therefore generally limited to two questions: whether the public agency has in its possession the document requested, and if it does, whether the document is subject to public inspection. OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-220; 94-ORD-65. The Department of Military Affairs properly advised Ms. Simon that it does not now, nor did it ever, have custody of the disputed records. In the absence of evidence to the contrary, we must assume the truthfulness of the Department's assertions.
Ms. Simon's appeal is premised on the idea that the Kentucky Air National Guard Base is state property, and that the Adjutant General is ultimately responsible for the activities and services offered there. The Department responds that although it exercises control over the Base, the RFP for vending services at the Base was issued by a private, not for profit corporation, the Kentucky Air National Guard Club, Inc. We have determined that the club was formed in 1959:
To own, operate, conduct, and maintain a membership club, club houses, club rooms, recreation centers, and reception and assembly rooms for the purpose of providing for the members' entertainment, sport, recreation, and instruction of all kinds; to furnish, equip, decorate, and fit up such club and club rooms; to promote social and friendly association among the members of such club or clubs and their guests; and to provide and supply any and all appurtenances that may be necessary, useful, or convenient for the carrying on of sports, recreation, and diversion on all kinds and descriptions for the entertainment, welfare and convenience of the members of such club or clubs and their guests and friends.
Kentucky Air National Guard Club, Inc., Articles of Incorporation, Article II, February 26, 1959. Among the powers exercised by the club at the Base is the power “to grant rights and concessions to others.” Article II. Whether this arrangement is, or was, somehow inconsistent with existing law relative to the Adjutant General's oversight role vis-a-vis the Base is not a cognizable issue under the Open Records Act. Our review is limited to the questions set forth above, namely does the agency have the records requested, and if it does, are they subject to public inspection. Since the answer to the first question is no, we need not resolve the second question.
We believe that the facts giving rise to this appeal are distinguishable from the facts which gave rise to this office's decision in 95-ORD-61. In that decision, we held that records relating to an RFP for the signage concession at the Kentucky Fair and Exposition Center issued by a bidding agent for the Fair Board were subject to inspection. The Fair Board had entered into a contract with the agent to “evaluate and make recommendations to [the Fair Board] respecting the needs for scoreboards and signage at the Kentucky State Fairgrounds.” 95-ORD-61, p. 5. We held that absent a specific exception authorizing the withholding of the records, “records which were generated in discharging its contractual obligation are related to functions, activities, programs, or operations funded by state authority,” and are subject to inspection. 95-ORD-61. p. 5. Because the Fair Board retained ultimate approval power relative to the corporation's recommendation, we concluded that records in the custody of the corporation were “used” and “possessed” by the Board, and therefore fell within the parameters of KRS 61.870(2).
In the instant appeal, the Kentucky Air National Guard Club, Inc., acted independently of the Department of Military Affairs in issuing the RFP for vending services at the Base. The Department exercised no oversight of the bidding process, and there was no contractual arrangement between the parties. Accordingly, records relating to the RFP issued by the Club cannot be said to relate to functions, activities, programs, or operations funded by the state. Nor can those records be said to have been “used” or “possessed” by the Department, and thus to fall within the parameters of KRS 61.870(2). Accordingly, 95-ORD-61 is not dispositive of the present appeal.
It is the opinion of this office that the issue of the propriety of the bidding process is peripheral to the open records issues in this appeal, and that the latter issues must be resolved in favor of the Department of Military Affairs.
A party aggrieved by this decision may appeal it 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 circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Sincerely,
A. B. CHANDLER, III
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
aps/1487
Distributed to:
Sue G. Simon
Office of General Counsel
Workforce Development Cabinet
2nd Floor
Capital Plaza Tower
Frankfort KY 40601
Lt. Col. Michael J. Van Leuven
Staff Judge Advocate
Office of the Adjutant General
Department of Military Affairs
Boone Center
Frankfort KY 40601-6168
[1] Ms. Simon's request was mailed on October 18, 1995, and received by the Department of Military Affairs on October 20, 1995. Col. Van Leuven responded on October 26, 1995. This was the fourth day after receipt of the request, excluding Saturdays, Sundays, and legal holidays. The response was therefore technically delinquent.