In January, Kentucky will have a new attorney general when Andy Beshear takes office. (See a recent article by The State Journal in Frankfort).
During the closing weeks of 2015, current Attorney General Jack Conway's office will be issuing its final open records and open meetings decisions.
In early December, the office released several open records opinions.
One of them dealt with a seemingly obvious principle: records must exist for a public agency to be required to produce them.
In 15-ORD-217, in re: Bruce M. Tyler/Council on Postsecondary Education, the attorney general's office found that the Council did not substantively violate the open records act by denying a records request "where no responsive records existed."
In that case, Dr. Tyler had requested records relating to the resignation of the University of Louisville's provost.
In response to his request, the Council told Dr. Tyler that matters of employment at U of L for faculty and staff are under jurisdiction of the university's Board of Trustees. The Council further told Dr. Tyler that it did not have any correspondence with U of L concerning either his or the former provost's employment at the university.
When Dr. Tyler initiated his appeal with the attorney general's office, the Council argued that it did not have any records on the subject and that requests for information were outside the scope of the open records act.
As such, the Council argued that its response was sufficient, and the attorney general's office agreed.
"[A]n agency is not obligated to honor a mere request for information under the Open Records Act," the opinion read. "Furthermore, a public agency cannot afford a requester access to a record that it does not have or that does not exist."
This decision serves as a reminder to individuals making requests under Kentucky's open records act that they should be specific as to the records they desire to inspect.