NOT TO BE PUBLISHED

96-ORD-118

May 23, 1996

In re: Dan Troxell/Wayne County EZ Community, Inc.

OPEN RECORDS DECISION

This matter comes to the Attorney General as an appeal by Dan Troxell in connection with his request to Wayne County EZ Community, Inc., for access to particular documents and materials.

In an undated letter Mr. Troxell, citing the Freedom of Information Act rather than the Kentucky Open Records Act (KRS 61.870 to KRS 61.884), requested copies of an archeological survey, an environmental survey, and all documentation dealing with these surveys. The letter was directed to Kenneth Ramsey, Chairperson, Wayne County Empowerment Zone Committee.

B. G. Edwards, Executive Director, Wayne County EZ Community, Inc., responded to Mr. Troxell in a letter dated December 7, 1995. Mr. Edwards advised that his organization did not have copies of any of the documents requested in its possession. “As I previously explained to you on the phone recently, these have not been provided to us and will not be provided to us until such time acquisition negotiations reach the point where they are required.”

In his letter of appeal to this office, received December 22, 1995, Mr. Troxell referred to his attempts to secure documents from the public agency and his dissatisfaction with the process to date.

The Freedom of Information Act applies to records in the custody or control of federal agencies while the Open Records Act (KRS 61.870 to KRS 61.884) pertains to records in the custody or control of agencies of the state and local governments. If the entity involved here is a state or local agency, and nobody has alleged that it is not, then the state's Open Records Act applies. Under the Open Records Act the Attorney General has a precise and limited function which, as set forth in KRS 61.880(2)(a), is to review a properly filed appeal and issue a written decision stating whether the agency violated the provisions of the Open Records Act. Thus, in the matter before us at this time we can only address the issue of whether the response to the request for documents was proper under the provisions of the Open Records Act.

KRS 61.872 deals with a person's right to inspect documents and subsection (4) of that statute provides:

If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.

In numerous opinions and decisions over the years this office has recognized that a public agency cannot afford a requestor access to documents which do not exist. See, for example, 95-ORD-81, copy enclosed, at page seven. There are, however, situations where a record exists or may exist but it is not in the possession of the public agency. Under those circumstances a public agency must comply with the requirements of KRS 61.872(4).

KRS 61.872(4) was amended in 1994. Prior to its amendment the statute required that if the person to whom the request for documents was directed does not have custody or control of those documents that person shall furnish the name and location of the custodian of the public records, if such facts are known to him. The 1994 amendment in part eliminated the phrase “if such facts are known to him” thereby imposing upon the public agency a greater obligation and responsibility to ascertain the location of requested records which it does not have.

In 95-ORD-81, at page six, this office said in part that KRS 61.872(4) compels the public agency not only to notify the requestor that it is not the custodian of the records, but also to furnish him with the name and location of the custodian of the records in question. See also 95-ORD-75, copy enclosed, at page two.

Thus the executive director not only was required to notify the requesting party that he did not have or is not the custodian of the two surveys and the related material requested, but he was also required to furnish the requesting party with the name and location of the custodian or holder of the requested records.

It is, therefore, the decision of the Attorney General that under KRS 61.872(4), as amended in 1994, the public agency is not only obligated to communicate to the requesting party, if applicable, that it does not have possession, custody, or control or particular records requested, but it is also required to furnish the requesting party with the names and locations of the persons or entities holding those records and documents. Failure of the public agency to satisfy all the required components of KRS 61.872(4) constitutes a violation of the Open Records Act.

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 shall be notified of any action filed in circuit court, but the Attorney General shall not be named as a party in that action or in any subsequent proceeding.

A.B. CHANDLER III

ATTORNEY GENERAL

THOMAS R. EMERSON

ASSISTANT ATTORNEY GENERAL

sjj/1601

Copies of this decision

have been delivered to:

Dan Troxell

P.O. Box 224

Monticello, Kentucky 42633

B. G. Edwards

Executive Director

Wayne County EZ Community, Inc.

3 Public Square

P.O. Box 817

Monticello, Kentucky 42633-0817