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 Georgetown-Scott County Airport Board violated the Open Records Act in the disposition of Paul J. Licato's July 17, 2001, request for Board records. For the reasons that follow, we conclude that the Board's response was only partially consistent with the provisions of the Act.
On July 17, Mr. Licato submitted a written request for access to "records of the members of the Georgetown/Scott County Regional Airport Board." Specifically, he requested information consisting of "the date each member was first appointed, by whom, reappointed, by whom, and the number of terms served including the dates of each term." Mr. Licato indicated that the requested information "should start with the appointment of the original board members who planned and constructed the Georgetown-Scott County Regional Airport."
In a letter dated July 18, 2001, Sandra Mendez Dawahare, attorney for the Board, responded to Mr. Licato's request, advising him as follows:
You are requesting information about the appointments of the current Board members and past Board members. The Airport Board is not the appointing authority and is not the official repository for the information which you requested. The appointment authorities are the Scott County Fiscal Court and the City of Georgetown for the current Board. You will need to request that information directly from those governmental bodies.
Your request also makes reference to the original Board members. If you are referring to the Board which initiated the current Georgetown Regional Airport planning and construction, that was the Joint Fayette-Scott County Airport Board. The appointing authorities for that Board were the Lexington-Fayette Urban County Government and the Fiscal Court of Scott County. Again you will need to request that information directly from them.
On this basis, Ms. Dawahare concluded, the Board could not comply with Mr. Licato's request.
Shortly thereafter, Mr. Licato submitted an amended request for records of the Georgetown-Scott County Airport Board and the Fayette-Scott County Airport Board consisting of "the Articles of Incorporation, including the bylaws, for each Board named above." He stated that in a conversation with Scott County Judge/Executive George Lusby, he had been advised that the county does not maintain these records, but that "the Airport Board should." 1 On July 26, 2001, Airport Board Chairman Jim Calloway notified Mr. Licato that the requested records would be made available for his inspection.
In exercising his right of inspection, Mr. Licato apparently experienced some difficulty prompting him to initiate this open records appeal. On appeal, he questions the Airport Board's refusal to provide him with "the information requested in [his July 17, 2001] letter to the Board," and its refusal to permit him to review the original Articles of Incorporation and by-laws executed by the Board. Mr. Licato explains:
[The Board] prepared . . . a copy of the Articles of Incorporation. After examining the Articles of Incorporation I noticed some discrepancies and asked to see the originals. When brought to the attention of [the Board representative designated to oversee inspection, ] he refused to show me the originals and said I would have to put in another request.
In closing, he notes that he was not afforded an opportunity to examine the Board's by-laws.
In a supplemental response directed to this office following commencement of Mr. Licato's appeal, Ms. Dawahare elaborated on the Airport Board's position. She observed:
When Mr. Licato examined the copy of the Articles of Incorporation he says he noticed some discrepancies and asked to see the originals. In actuality, the original documents are on file at the Secretary of State's office and the Scott County Clerk. Mr. Licato can certainly go to one of those offices to review the original Articles of Incorporation.
Mr. Licato further states that he was told that he would have to make an additional request to review the originals. Pursuant to KRS 61.872(2) the official custodian may require written application specifically describing the records to be requested. Therefore, [the agency's] request was well within the law when he asked that Mr. Licato provide another written request specifically stating the documents that he wanted to review. A public agency is not obligated to honor a request for information, as opposed to a request for specifically described records. See, 99-ORD-71, 97-ORD-182, 96-ORD-150, 96-ORD-146, 96-ORD-53, 95-ORD-150, 95-ORD-131.
Ms. Dawahare concluded her response with the observation that the Airport Board is comprised of volunteers, and has no records clerk. Although Mr. Licato was permitted full access to the "entire file with all records we have in our possession," the by-laws could not be located. She agreed to furnish him with a copy of the by-laws, upon receipt of a written request, if the Board later located them.
We concur with the Board in the view that a public agency is not obligated to compile information to conform to the parameters of an open records request, and that an agency cannot permit access to records which it is unable to locate. However, we find that the Board's inability to locate records documenting its essential transactions, such as its by-laws, suggests an inadequate records management program that may warrant review by the Department for Libraries and Archives under authority of Chapter 171 of the Kentucky Revised Statutes. Further, we find that the Board's failure to designate a records custodian to assume responsibility for the maintenance, care, and keeping of public records per KRS 61.870(5), and for issuing legally sufficient responses to open records requests per KRS 61.880(1), is inconsistent with the Open Records Act and suggests the need for an internal review of Board compliance with the Act.
The Attorney General has long recognized that a public agency is not statutorily obligated to honor a request for information as opposed to a request for specifically described public records. For example, in 93-ORD-51 this office held that the Open Records Act:
was not intended to provide a requester with particular "information," or to require public agencies to compile information to conform to the parameters of a given request. See, e.g., OAG 76-375; OAG 79-547; OAG 81-335, OAG 86-51; OAG 87-84; OAG 89-77; OAG 89-81; OAG 90-19. Rather, the Law provides for inspection of reasonably identified records.
93-ORD-51, p. 3. See also OAG 87-84; KRS 61.872(1); KRS 61.872(2); KRS 61.871. Therefore, we find no error in the Airport Board's position that it was not obligated to honor Mr. Licato's July 17 request for information relating to board member appointments.
Nor can an agency permit access to records that it is unable to locate, such as, in this case, the Airport Board's by-laws. The Attorney General has consistently held that an agency is not bound to honor a request for records which do not exist (because they were never created or have been properly destroyed under the applicable records retention schedule), a request for records which are not in the agency's custody (because they were neither prepared, owned, used, in the possession of, nor retained by the agency), or a request for records that cannot be located (because they have disappeared or been lost). See, e.g., OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203; 98-ORD-200; 99-ORD-198. Traditionally, the Attorney General has taken the view that it is not this office's duty to investigate in order to locate documents which do not exist or have disappeared. OAG 86-35.
However, 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 July 15, 1994, when the amendments to the Open Records Act took effect, we have applied a higher standard of review relative to denials based on the nonexistence, or here the disappearance, of the requested records. In order to satisfy its statutory burden of proof, a public agency must, at a minimum, document what efforts were made to locate the missing records. Because the Georgetown-Scott County Airport Board failed to provide an explanation for the loss of records documenting essential transactions, such as its by-laws, we are compelled to conclude that the Board failed to adequately manage its records. The loss of a public record creates a presumption of records mismanagement, but this presumption is rebuttable. The Board failed to overcome the presumption because it offered no explanation for the loss of its by-laws. For this reason, we have referred this matter to the Kentucky Department for Libraries and Archives for additional review, as that agency deems warranted, under Chapter 171 of the Kentucky Revised Statutes.
In addition, we find that the Airport Board's failure to designate the presiding officer, or one of its members, as official custodian of records constitutes a violation of the Open Records Act. Over the years, this office has recognized:
The Open Records Act assumes the appointment of an official custodian, defined as "the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control," KRS 61.870(5), who is responsible for the timely processing of open records requests. KRS 61.872; KRS 61.880(1). The Attorney General has recognized that in the event the official custodian is absent, "an individual should be appointed as acting custodian to respond to open records requests in a timely fashion." 94-ORD-86, p. 4; see also 96-ORD-185, p. 3 (holding that "the Law presumes the appointment of a records custodian . . . and in his absence, the appointment of an alternate to fulfill his duties"); 98-ORD-161, p. 3 (holding that "the three day statutory response time is not tolled by the absence of the agency's records custodian" ).
00-ORD-226, p. 2. While we understand and appreciate the fact that the Georgetown-Scott County Airport Board is comprised of volunteers, and apparently has no permanent staff, it is a public agency nonetheless, and it is incumbent upon it to designate an official custodian of records to discharge the duties imposed on all public agencies under the Open Records Act. The Act recognizes no exceptions.
We find no authority for the Board's demand that Mr. Licato submit a new request for the "original" of any document after he has been permitted to inspect a copy. On July 25, 2001, he requested access to the Board's "Articles of Incorporation, including By-Laws. " He was permitted access to a copy of the Articles, but advised that if he wished to review the original, he must submit a new open records request. KRS 61.872(2) narrowly restricts what information a public agency may require from the requester, and makes it clear that no particular terms of art must be employed in order to frame a request. On this issue, the Attorney General has commented:
The [official custodian of records] may require, if [he] desires to do so, that a request or application be in writing. If a written request or application is required, the statute is satisfied if the written application . . . contains the following:
1. Applicant's signature.
2. Applicant's name printed legibly.
3. Description of records to be inspected.
94-ORD-101, p. 3. In sum, we concluded that "[a] public agency cannot demand or require more in regard to a request to inspect public records than is required by KRS 61.872(2)." Acknowledging that the Airport Board cannot permit inspection of an original document if it contains exempt information that must be redacted per KRS 61.878(4), and that it is authorized "to protect public records from damage and disorganization" per KRS 61.876(1), we do not believe that the Board can otherwise place conditions on inspection of an original document, including the condition that the requester ask to inspect "the original." 2
We urge the Georgetown-Scott County Airport Board to discharge its statutory duty by appointing its presiding officer or one of its members official record custodian for the agency, with the goal of insuring strict compliance with the requirements of the Open Records Act. Further, we urge the Board to review its records management program to insure the right of public access through effective records management.
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 proceedings.
Paul J. Licato, Sr.440 Cane Run Rd.Georgetown, KY 40324
Sandra Mendez DawahareAttorney for the Georgetown Regional AirportLandrum & Shouse Law Offices106 West Vine Street, P. O. Box 951Lexington, KY 40588-0951
Jim CallowayChairman, Georgetown-Scott County Regional AirportMarshall Field6206 Paris PikeGeorgetown, KY 40324 Richard Belding, DirectorPublic Records DivisionDepartment for Libraries and Archives300 Coffee Tree RoadP. O. Box 537Frankfort, KY 40601
Footnotes
Footnotes
1 On July 19, 2001, Mr. Licato submitted open records requests to the City of Georgetown and the Scott County Fiscal Court that mirrored his earlier request to the Board. Although these agencies were able to only partially honor his requests, Mr. Licato does not appeal their responses.
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2 Ultimately, of course, this issue was rendered nugatory by virtue of the fact that it was determined that the original of the Board's Articles of Incorporation is located in the Office of the Secretary of State.
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