An attorney who moves from a public agency to private practice is not subject to the Open Records Act.
In the matter of In re: Spencer County Attorney/Ruth Hollan, 16-ORD-224, Attorney General Beshear issued an opinion to resolve the appeal.
On Sept. 8, 2016, Spencer County Attorney Kenneth S. Jones requested records from former County Attorney Ruth Hollan, including accounts receivable, payable and the books for the bad check program from 2013 and 2014.
Hollan, after Jones took over the office as County Attorney, became a private attorney. She timely responded, and included a letter dated May 19, 2015, that dealt with the bad check program. She also stated she could not provide what she did not have.
Jones appealed on Sept. 15. In the appeal, he acknowledged that public agencies cannot provide non-existent records, but that exception does not apply when the documents do exist, but were destroyed or lost.
Beshear noted that Jones was correct, but stated he could not find Hollan violated the Open Records Act as she was no longer the Spencer County Attorney, a public agency under KRS 61.870(1)(a).
At the end of the opinion, Beshear noted that as the current office holder of the public agency, Jones is responsible for the records in his possession as county attorney. He has a responsibility to maintain the records, especially for future Open Records request.
If the documents have been lost or destroyed that he requested from Hollan, the relief does not lie with the Attorney General. A representative with the Kentucky Department for Libraries and Archives agreed to contact Jones to consult with him and ensure appropriate record management and retention practices are being used in his office.