Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Hopkins County Fiscal Court violated the Open Records Act in responding to the request of Elbert Powell for copies of "the signed executed contract, regarding the collecting of taxes, between the Fiscal Court and Financial Protection Services, Inc. based in Henderson, Kentucky" and "all payments made to this company from Hopkins County Fiscal Court."
Responding on behalf of the Fiscal Court, Richard L. Frymire, Hopkins County Judge/Executive, advised:
Copies of the contracts between the Hopkins Fiscal Court and Financial Protection Services, Inc. and the payments to Financial Protection Services, Inc. are available to you in my office upon payment of $ 5.70 for copying fees.
In his letter of appeal, Mr. Powell indicated that he received copies of the contract agreement signed only by Judge Frymire, but did not receive a copy of the executed contract (s), signed by both parties. It is from the failure to receive an executed copy of the contract(s) that Mr. Powell appeals.
After receipt of notification of the appeal and a copy of Mr. Powell's letter of appeal, Judge Frymire provided this office with a response to the issues raised in the appeal. In his response, Judge Frymire stated:
The Hopkins County Fiscal Court and the Office of the Judge/Executive have completely complied with Mr. Powell's request for documents. The date of Mr. Powell's request was October 29, 2001. The Hopkins County Fiscal Court responded in full November 1, 2001 by furnishing an exact copy of every record pertaining to the subject matter of Mr. Powell's request. At the time of his request, the Hopkins County Fiscal Court and the Office of the Judge/Executive did not have in its possession the contracts with Financial Protection Services that were fully executed by both parties. Mr. Powell did receive a copy of the documents held by Hopkins County.
Again, at the date of Mr. Powell's request Hopkins County did not possess a copy of the contract executed by Financial Protection Services.
We are asked to determine whether the response of the Hopkins County Fiscal Court violated the Open Records Act. For the reasons that follow, we conclude that the response was procedurally deficient in failing to affirmatively advise Mr. Powell that the agency did not have an executed copy of the requested contract(s), at time of his request.
This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Fiscal Court's action, in responding to the original request, was procedurally deficient in failing to affirmatively advise Mr. Powell that it did not have an executed copy of the requested contract(s).
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 requirement 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, document what efforts were made to locate the requested records, and offer some explanation for the nonexistence of the records.
Accordingly, if the Fiscal Court has now obtained executed copies of the requested contract(s), it must immediately make them available for Mr. Powell's inspection or provide him with an explanation for the nonexistence of a copy of the executed contract (s).
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.
Elbert PowellBox 601Nortonville, KY 42442
Richard L. FrymireHopkins County Judge/ExecutiveHopkins County Court10 S. Main StreetMadisonville, KY 42431
Robert MooreHopkins County AttorneyHopkins Count Courthouse25 East Center StreetMadisonville, KY 42431