NOT TO BE PUBLISHED

96-ORD-217

October 16, 1996

In re: Randall Conley/Fayette County Public Schools

Open Records Decision

This appeal originated in a request to inspect public records submitted by Randall Conley, business manager for Plumbers & Steamfitters Local #452, to the Fayette County Public Schools on September 9, 1996. Mr. Conley requested copies of the five year work history on Davis & Plomin Mechanical.

On September 12, 1996, Clarence E. Glover, custodian of public records for the Fayette County Public Schools, advised Mr. Conley as follows:

After researching our records, we do not find a record of any work performed for the Fayette County Public Schools by Davis & Plomin Mechanical during the past five years.

We are asked to determine if the Fayette County Public Schools violated the provisions of the Open Records Act in responding to Mr. Conley's request.

This office has long recognized that a public agency cannot provide 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; 94-ORD-65; 94-ORD-41. We have also recognized that 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. 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.” We believe that OAG 86-35 is dispositive of the issues raised in this appeal. In the absence to evidence to the contrary, we must assume the truthfulness of the Fayette County Public School's assertion that no such record exists.

The Open Records Act regulates access to public records. OAG 91-220; 92-ORD-1274; 93-ORD-10; 93-ORD-23; 93-ORD-51; 93-ORD-55; 93-ORD-71; 93-ORD-75; 93-ORD-95. Our decisions are, in general, 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. Here, the Fayette County Public Schools advised Mr. Conley that the records he requested did not exist. Inasmuch as the contractor identified in Mr. Conley's request has done no work for the Fayette County Public Schools in the past five years, this response was entirely consistent with 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 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.

A.B. Chandler III Attorney General

Amye L. Bensenhaver

Assistant Attorney General

Distributed to:

Randall Conley

Plumbers & Steamfitters Local #452

525 Deroode Street

Lexington KY 40508

Clarence E. Glover

Custodian of Public Records

Fayette County Public Schools

101 East Main Street

Lexington KY 40502-1699