NOT TO BE PUBLISHED
96-ORD-151
July 2, 1996
In re: Pam Sapp/Workforce Development Cabinet
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Workforce Development Cabinet's response to Pam Sapp's May 23, 1996, request for:
[R]eprimand(s) placed in my personnel file by Ray Gillaspie during the six-month period of 07/01/95 - 12/31/95, and already in place at the time of my employee evaluation on 01/10/96.
[D]ocumentation sent to me when Dwayne Gatewood placed me involuntarily on sick leave (04/30/96), advising me of my rights under 18A.095, i.e., the statutory or regulatory violation [sic] I had violated; the specific action or activity on which my penalization was based; the date, time, and place of the action or activity; the names of the parties involved; and that I had a right to appeal the penalization to the Personnel Board.
In addition to the aforementioned documents, Ms. Sapp requested “documentation sent to me informing me that the reprimand was being placed in my personnel file, that I had a right to respond, and that I had a right to appeal to the Personnel Board.”
On May 24, 1996, Sue G. Simon, of the Cabinet's Office of General Counsel, responded to Ms. Sapp's request by providing her with copies of an April 26, 1996, reprimand letter, and an April 29, 1996, letter placing her on sick leave. Dissatisfied with this response, Ms. Sapp initiated this open records appeal, arguing that the records
she received did not correspond to her request. [1] In her letter of appeal, she observes:
The documents that I requested do not exist, and this is Ms. Simon's attempt to avoid confirming it because she knows that I will use the admission that no such documents exist to file criminal charges against members of the Workforce Development Cabinet.
Responding to these observations in a letter to this office, Ms. Simon readily conceded that the documents which Ms. Sapp requested do not exist. She indicated that the Cabinet nevertheless “attempted to comply [with her request] by providing her a copy of the only reprimand in her personnel file and the letter placing her on medical leave.” [2]
The question presented in this appeal is whether the Workforce Development Cabinet violated the provisions of the Open Records Act in its response to Ms. Sapp's May 23 request. For the reasons set forth below, we conclude that although the Cabinet made a good faith effort to comply with the Act by providing Ms. Sapp with the only documents in its custody which approximated the documents identified in her request, it erred in failing to advise her that the precise documents she requested do not exist.
This office has repeatedly recognized that a public agency's response is insufficient under the Open Records Act if it fails to advise the requesting party whether the specific document requested exists. OAG 86-38; OAG 90-26; OAG 90-69; OAG 91-101. In OAG 86-38, at page 3, we construed the obligation of the agency relative to a request to inspect documents, noting, “KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested.” Echoing this view, in OAG 90-26, at page 4, we categorically stated, “If a record of which inspection is sought does not exist, the agency should specifically so indicate.”
The Workforce Development Cabinet candidly acknowledges that no records exist which satisfy Ms. Sapp's request. “Affording her the benefit of the doubt and assuming that she was genuinely interested in obtaining documents relating to her request,” the Cabinet provided her with copies of the only records in its custody which might be responsive. In view of the fact that these records did not correspond to the records she requested, and the Cabinet recognized such, the Cabinet should have simply advised her that no such records exist. Thus, despite its apparent efforts to comply with the Open Records Act, the Cabinet violated the Act by failing to advise Ms. Sapp that the records she requested do not exist.
A party aggrieved by this decision may appeal it 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.
A. B. CHANDLER III
ATTORNEY GENERAL
AMYE L. BENSENHAVER
ASSISTANT ATTORNEY GENERAL
aps/674
Distributed to:
Sue G. Simon
Office of General Counsel
Workforce Development Cabinet
Pam Sapp
[1] Ms. Sapp also objects that the Cabinet's response is untimely. Although it was dated May 24, she states that she did not receive it until June 1.
[2] Ms. Simon also explained the delays in transmission of the Cabinet's response to Ms. Sapp. She stated that Ms. Sapp occasionally uses her work address as her return address, despite the fact that she is on medical leave and not in the workplace. Because we believe that this accounts for these otherwise avoidable delays, we do not address this issue.