A city subverted the intent of the Open Records Act by
failing to adopt rules and regulations as required by statute.
On Oct. 6, 2016, Attorney General Andy Beshear issued an opinion
in the matter of In re: R. Keith
Cullinan/City of Mockingbird Valley, 16-ORD-217.
R. Keith Cullinan, an attorney, requested records relating
to the sixth-class Jefferson County city’s open record process on Aug. 25.
The next day the city replied to Cullinan. The letter said that
the city does not maintain records responsive to the request. The appeal was
initiated on Sept. 2, where Cullinan argued that Mockingbird Valley was
attempting to subvert the Open Records Act intent.
In the response to the appeal the city said that it admitted
that there are persons within the city that have custody of records, but has no
records of who has custody, but allowed Cullinan access to records in the City
Attorney’s office.
Beshear noted, per 99-ORD-98, that assuming there were
actually no records responsive to Cullinan’s request, the city did not violate
the Open Records Act, because a public agency cannot produce records it does
not have. The city’s duty was completed in affirmatively stating they had no
records, especially since it opened access to the records in the City
Attorney’s office.
Beshear also stated that Mockingbird Valley subverted
the intent of the Act, in KRS 61.880(4). Because the city did not have any
rules or regulations on the matter of public records, it showed the city failed
to comply with KRS 61.876(1).
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