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 Georgetown Occupational Tax Administrator violated the Open Records Act in the disposition of Keith Guy's August 30, 2002, request for "assistance in locating property within the Georgetown, Scott County limits, of any H & L Inn or any abandon [sic] Gas Station and there [sic] location within the year of 1997, 1998, 1999 and 2000, or any information pertaining to H & L Inn and a [sic] abandon [sic] Gas Station in your listing." For the reasons that follow, we find that the City's disposition of Mr. Guy's request was procedurally deficient but substantively correct.
On appeal, Mr. Guy identifies as the "offense(s)" allegedly committed by the city ("checked off" in "referral box[es]"):
KRS 61.880(1) The Three Days to answer requirement
. . .
KRS 61.872(2) Application to Inspect
. . .
KRS 61.874(1) Right to Inspect, but, make Deletions[.]
Although it is by no means clear, we assume that Mr. Guy challenges the city's failure to respond to his request in writing and within three business days, and to afford him an opportunity to inspect redacted copies of responsive records. 1
In supplemental correspondence directed to this office following commencement of Mr. Guy's appeal, Georgetown City Attorney Charles M. Perkins notified this office:
The request was received in the City's Occupational Tax Office on September 5. The supervisor in that office found no records related to either an H&L Inn or an abandoned gas station. The supervisor sent the request to the Finance Director. He was out for vacation. The matter did not come to his attention until September 16. He also found no record related to these entities.
In closing, Mr. Perkins advised that all open records requests should be directed to Mayor Everette L. Varney's office "to avoid the delay experienced by Mr. Guy."
From a procedural standpoint, the city's disposition of Mr. Guy's request was deficient. The procedures governing agency response to open records requests are set forth at KRS 61.880(1), which provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
To the extent that the City of Georgetown failed to issue a written response to Mr Guy's request within three business days, the city violated KRS 61.880(1). The fact that the city's finance director was out for vacation did not relieve the city of its duty to issue a timely, written response. 94-ORD-86; 96-ORD-185; 98-ORD-161; 00-ORD-226. If, for some reason, an adequate search could not be conducted in his absence, the city should have promptly notified Mr. Guy, and provided him with a detailed explanation for the delay. KRS 61.872(5). We urge the city to review the cited provisions to insure that future responses conform to the Open Records Act.
From a substantive point of view, we find no error in the city's disposition of Mr. Guy's request. To begin, that request was improperly framed as a request for information rather than a request for reasonably described public records. In opinions dating back to 1976, the Attorney General has repeatedly observed:
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
OAG 87-84, p. 3; see also OAG 89-77, p. 4 ("Open records provisions address only inspection of records. They do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request"); OAG 89-81, p. 5 ("Open Records provisions were not intended to serve as comprehensive audit tool, or as a means of commanding compilation and production of specific information"); OAG 90-19, p. 3 ("Kentucky's Open Records provisions are not intended to provide a requester with particular 'information,' nor to require public agencies to compile information to conform to the parameters of a given request").
Nevertheless, the City of Georgetown conducted a search for records that might yield the information Mr. Guy was seeking. Its search proved unproductive. It is well established that a public agency cannot afford a requester access to a record which does not exist and that it is not within the Attorney General's statutory charter to investigate in order to locate documents which the requester believes to exist but the agency cannot locate. OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-103; 02-ORD-120. Since the Open Records Act was amended in 1994, however, this office 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 document what efforts were made to locate the requested records, and 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 conducted a search for records relating to H & L Inn or an abandoned gas station in the offices of the Occupational Tax Administrator and Finance Director. We believe that this search methodology was reasonable given the manner in which Mr. Guy's request was framed. We decline to "question [the city's] veracity when nothing appears to raise the issue of good faith." Weissmer v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977) cited in 95-ORD-96. Accordingly, we find no error in the ultimate disposition of Mr. Guy's request.
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 Because Mr. Guy is an inmate confined at Northpoint Training Center, we cannot understand how he intended to exercise his right of on-site inspection in the offices of the City of Georgetown Occupational Tax Administrator.