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 Langdon Place violated the Open Records Act in responding to R. Allen McCartney's December 15, 1998, request to inspect various records relating to speed humps installed on Blossom Lane. For the reasons that follow, we find that the City's response was procedurally and substantively deficient.
On December 15, Mr. McCartney submitted a request for city records to Dave Whalin, an attorney representing the City in an action styled McCartney v. City of Langdon Place . Mr. McCartney requested copies of:
1. Any and all communications, memorandum, designs, engineering renditions, blue prints for the speed humps installed on Blossom Lane in the City of Langdon Place.
2. Any and all communications to and from any traffic engineer, highway engineer, architect, or other roadway or highway design person concerning the design specifications for the speed humps installed on Blossom Lane in the City of Langdon Place.
3. Any and all communications, letters, notes, photographs, electronic mail (E-mail), to and from any official, elected person, mayor, city councilmen, or other representatives of the City of Langdon Place and any highway engineer concerning the speed humps installed on Blossom Lane in the City of Langdon Place.
4. Copies of any and all traffic surveys, speed surveys, environmental impact statements, or other documents forming the basis for the installation of the speed humps installed on Blossom Lane in the City of Langdon Place.
5. Copies of all contracts, memorandums, instructions, design specifications issued by the City of Langdon Place to the construction company that installed the speed humps on Blossom Lane.
That request apparently went unanswered, prompting Mr. McCartney to initiate an open records appeal. 1
On January 19, 1999, this office notified the City of Langdon Place that Mr. McCartney had initiated an appeal. Shortly thereafter, the City responded to his request by advising him that "other than the guidelines and specifications for speed humps . . ., the City is not in possession of an [sic] 'public records' as defined by KRS 61.870(2) that are responsive to [the] request." The City did not elaborate. It is the opinion of this office that the City's response was procedurally flawed, and substantively deficient.
We begin by noting that in responding to Mr. McCartney's request, the City failed to comply with KRS 61.880(1). 2 That statute establishes guidelines for agency response to an open records request. It requires that upon receipt of a request, the agency:
determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, . . . whether to comply with the request and . . . notify in writing the person making the request, within the three (3) day period, of its decision.
KRS 61.880(1) also states that a response denying, in whole or in part, access to records identified in the request must include citation to the specific exception authorizing the withholding of the record, and a brief explanation of how the exception applies to the record withheld.
The record before us indicates that the City of Langdon Place violated KRS 61.880(1) by failing to respond in writing, and within three business days, to Mr. McCartney's request. We remind the City that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. We urge the City of Langdon Place to review the cited provision, and to revise existing policies, to insure that future responses conform to the procedural requirements of the Act.
Turning to the substantive issues in this appeal, we find that although the City cannot be said to have violated the Open Records Act in partially denying Mr. McCartney's request if, in fact, no records exist which satisfy that request, the City's apparent failure to document essential transactions relating to the installation of speed humps raises records management issues. We have therefore referred this matter to the Department for Libraries and Archives for review under Chapter 171 of the Kentucky Revised Statutes.
This office has long recognized that a public agency cannot furnish access to records which do not exist. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17. We have also recognized that it is not our duty to investigate in order to locate documents which do not exist or have disappeared. OAG 86-35. Thus, at page 5 of OAG 86-35 we observed, "This office is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the party seeking to inspect such documents."
In 1994 the Open Records Act was amended. The Act now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740, dealing with the management of public records, and KRS 61.940 to 61.957, dealing with the coordination of strategic planning for computerized information systems]." KRS 61.8715. The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id.
Since these amendments took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based on the nonexistence of the requested records. In order to satisfy its statutory burden of proof, an agency must, at a minimum, offer some explanation for the nonexistence of the records. See, for example, 94-ORD-140 (records of investigation not in sheriff's custody because sheriff did not conduct investigation); 97-ORD-17 (evaluations not in university's custody because written evaluations were not required by university's regulations). The City of Langdon Place fails to offer even a minimal explanation for the nonexistence of records documenting official action relative to the decision to install speed humps, for example notification for bids and an executed contract. We are therefore unable to determine if the City has established an adequate basis or explanation for the nonexistence of these records, or the broad range of records identified in Mr. McCartney's request. 3 For this reason, we have referred this matter to the Department for Libraries and Archives for a determination of whether additional inquiries are warranted under Chapter 171, and in particular KRS 171.640 requiring adequate and proper documentation of essential transactions of an agency.
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 On January 18, Mr. Whalin furnished Mr. McCartney with a copy of a May, 1993, article from ITE Journal entitled "Guidelines for the Design and Application of Speed Humps. " It is unclear whether this article was intended to represent the City's response to Mr. McCartney's December 15 request.
2 The City did not provide this office with a supplemental response to Mr. McCartney's letter of appeal or refute any of the allegations therein. We therefore assume that his letter of appeal contained an accurate statement of the facts.
3 If any records relating to the installation of the speed humps exist, they are "public records" as defined in KRS 61.870(2). This expansively worded definitional section encompasses "all documentation, regardless of physical form or characteristics, which [is] prepared, owned, used, in the possession of or retained by the public agency. " Although a question may exist as to whether such records must be made available for public inspection, or otherwise qualify for exclusion under one or more of the exceptions codified at KRS 61.878(1)(a) through (l), it is virtually inconceivable that no records were created during the planning or execution of the speed hump project.