Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of McKee violated the Open Records Act in responding to Margaret H. Rader's August 17, 1998, request to inspect various records which she believes to be in the city's custody. For the reasons that follow, we find that the city's response was consistent with the Act in all particulars except one. Although the city properly responded to Ms. Rader's request for a mailing list and check history by advising her that no such records are maintained, it erred in failing to advise her whether records that are responsive to her request for correspondence directed to various identified parties exist, and if so, on what basis those records were withheld.
On August 17, Ms. Rader requested access to:
. any and all correspondence distributed among the City of McKee, the mayor, any city employee, council members, the Governor, Attorney General, Secretary of State, Kentucky Elections Commission, CVADD, KHIC, and/or any other government official or agency, and the citizens who received or sent any information which in any way referred to or concerned Margaret H. Rader[;]
. the complete mailing list , including names, addresses, and phone numbers, to which any and/or all correspondence, or any information, had been mailed or hand-delivered which alludes in any way to Margaret H. Rader [emphasis in original;]
. a check history for Dwight Bishop, Regina Gabbard, Philip Johnson, Margaret H. Rader, Frank Thomas, Diane Moore, Brian Thomas, and Kenneth Isaacs from January 1, 1997, to the present.
In a letter dated August 21, 1998, Mayor Kenneth Isaacs responded to Ms. Rader's request advising her that a check history "as a routine matter, . . . is not available," and that a mailing list does not exist. With reference to her request for "any and all correspondence, " Mayor Isaacs remarked:
Letters containing general information of interest to the citizens of McKee have been generated and sent to some citizens and all the council members. You have a copy of these and if you cannot keep up with your copies, that is your problem.
Mayor Isaacs did not indicate whether any other correspondence exists which is responsive to her request. To this extent, the city's response was defective.
In a recent decision, this office examined the issue of how specific a public agency must be in denying the existence of records identified in an open records request. At pages 3 and 4 of 97-ORD-161, we observed:
In OAG 91-101, this office held that a public agency's response is insufficient under KRS 61.880(1) if it fails to advise the requesting party whether the requested record exists. Citing OAG 86-38, at page 3, we construed the obligation of the agency relative to a request to inspect documents, noting:
In other words, "If a record of which inspection is sought does not exist, the agency should specifically so indicate. OAG 90-26, p. 4. In OAG 91-101, the record requested from the University of Kentucky was specifically identified as "minutes of a meeting of tenured faculty members conducted by Dr. Fred Knapp in November, 1986." The agency's response neither admitted nor denied the existence of the minutes. We concluded that unless the agency was unable to determine whether the minutes exist, by virtue of the request's failure to identify with reasonable particularity the meeting at which the minutes were taken, it must advise him whether they exist.
In 96-ORD-101, we were asked to determine if a request for "such records as will provide the basis for . . . [the] statement, as referenced in the . . . Courier-Journal article dated February 23, 1996, that city officials estimate the cost of responding to open records requests filed by me and my family at $ 316,250 over the past five years" was sufficiently specific to require an unequivocal response. Noting that the requester had not requested a specific record, but had instead made an "open-ended any-and-all-records-that relate-type of request," we held that the city's general denial was appropriate. We observed:
96-ORD-101, p. 3, citing OAG 91-58, p. 4. "To require an unequivocal denial of a nonspecific request for records," we concluded, "is to impose a burden on the public agency which no custodian of records, or individual acting under his authority, can practically discharge." 96-ORD-101, p. 3.
Having reviewed Ms. Rader's request for "any and all correspondence, " we find that although it was not sufficiently specific to warrant an unequivocal response, the City of McKee was legally obligated to issue a general denial of her request if, in fact, no such correspondence exists.
Moreover, the City of McKee cannot avoid its duty to furnish Ms. Rader with copies of nonexempt public records in response to a nonduplicative open records request simply because she may have received copies of these records on an earlier date for non-open records related purposes. Obviously, an agency is not required to produce multiple copies of the same records in response to duplicative requests. At pages 6 and 7 of 95-ORD-105, we commented:
With respect to the issue of duplicative requests for the same records, this office has opined that an agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6. We reasoned:
Ms. Rader's August 17 request was not duplicative insofar as she had not been furnished with copies of "letters containing general information of interest to the citizens of McKee" in response to an earlier open records request. She may or may not have retained copies of these letters when she received them as a councilperson. The salient fact in our analysis is that she has not received them in response to an open records request. Upon prepayment of a reasonable copying charge, generally deemed to be ten cents per page, 1 Ms. Rader is entitled to receive copies of the "letters containing general information" to which Mayor Isaacs referred. KRS 61.874(1). The City of McKee is directed to respond to this portion of Ms. Rader's request in a manner consistent with the principles set forth above.
Nevertheless, we find that the city's response was, in all other respect, consistent with the provisions of the Open Records Act. Mayor Isaacs promptly responded to Ms. Rader's request for a mailing list and check history by unequivocally advising her that no such records exist. The city does not maintain a mailing list of persons to whom correspondence or information has been sent which alludes to Ms. Rader. Although the city no doubt maintains a record of checks issued to or by, or checks received from, the individuals identified in her request, it does not maintain a "check history" on each of these individuals.
The City of McKee cannot furnish that which it does not have, and is not required to create that which was never created. This office has long recognized that a public agency cannot afford a requester access to records which do not exist or which have been lost or destroyed. See, for example, OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203; 95-ORD-45. We have just as consistently recognized that an agency is not required "to make a list of items from its records if such a list does not already exist." OAG 79-547, p. 1; see also, OAG 76-375; OAG 86-51; OAG 89-77; 95-ORD-82. The city fully discharged its obligations under the Open Records Act by advising Ms. Rader that no records exist which are responsive to her request for a mailing list and check history.
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.
Footnotes
Footnotes
1 See Friend v. Rees, App., 696 S.W.2d 325 (1985) for a discussion of what constitutes a reasonable fee for copies of records.