Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Blackey violated the Open Records Act in the disposition of Dean Cornet's July 10, 2004, request for copies of the city's "most recent budget [and] most recent [annual] financial statement. " In an undated response, Mayor Mark Stone provided Mr. Cornett with a copy of the fiscal year 2003-2004 budget and the proposed fiscal year 2004-2005 budget, but advised that the city was "currently working on the financial statement and [that it was] not yet completed." For the reasons that follow, we find that because the City of Blackey could not produce for inspection a record that did not exist when the request for that record was submitted, the city cannot be said to have violated the Act in the disposition of Mr. Cornett's request. Moreover, because the city subsequently provided a plausible explanation for the nonexistence of the requested record, we do not find that this appeal raises records management issues that warrant review by the Kentucky Department for Libraries and Archives pursuant to KRS 61.8715.
Following issuance of this office's notification of receipt of Mr. Cornett's appeal, Mayor Stone confirmed that he had previously advised Mr. Cornett that the city's financial statement had not been completed. Mayor Stone indicated that he was "working with the Department for Local Government to get back into compliance," and that "[u]pon completion of the financial statement a copy" would be sent to the Attorney General and Mr. Cornett. To date, we have not received a copy of the city's financial statement. Although it is unclear how or why the City of Blackey became noncompliant, relative to its KRS 91A.040 statutory duty, 1 we confine our analysis to the city's compliance with KRS 61.870 et seq., and with respect to those provisions we find no violation. 2
In 97-ORD-116, the Attorney General observed:
[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.
97-ORD-116, p. 1, 2. Thus, in 94-ORD-140, we affirmed the Ohio County Sheriff's Department's denial of a request for investigative records on the basis the records did not exist when the sheriff explained that his office did not conduct the investigation. See also, 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by University's regulations); 98-ORD-23 (Department for Libraries and Archives explains that certification documents for agency compliance with records management policies do not exist because Department has no formal certification program due to limited fiscal and staff resources.) Conversely, in 97-ORD-103, 97-ORD-116, and 97-ORD-146, we held that because the public agencies failed to offer even a minimal explanation for the nonexistence of records which were apparently required by law, we could not determine if the agencies met their statutory burden of proof under KRS 61.880(2)(c).
This appeal is more closely akin to 94-ORD-140, 97-ORD-17, and 98-ORD-23 insofar as the city offers a plausible explanation for the nonexistence of the statutorily required financial statement. Stated simply, the city acknowledges it has not complied with its duty under KRS 91A.040(3), but indicates that efforts are underway to insure compliance. Currently, no record exists that is responsive to Mr. Cornett's request. We therefore find no error in the City of Blackey's response to that 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.
Dean CornettBox 272Blackey, KY 41804
Mayor Mark StoneP.O. Box 364Blackey, KY 41804
Footnotes
Footnotes
1 KRS 91A.040(3) provides:
Any city of the sixth class, which for any fiscal year receives and expends, from all sources and for all purposes, less than seventy-five thousand dollars ($ 75,000), and which has no long-term debt, whether general obligation or revenue debt, shall not be required to audit each fund of the city for that particular fiscal year. Each city shall annually prepare a financial statement in accordance with KRS 424.220 and immediately forward one (1) copy to the Kentucky Department for Local Government for information purposes. The department shall be responsible for forwarding one (1) copy of the financial statement to the Legislative Research Commission to be used for the purposes of KRS 6.955 to 6.975.
Mr. Cornett premises his right of access to the city's financial statement on this provision.
2 Mr. Cornett acknowledges receipt of some of the records he requested over time, but asserts that he "can't make any sense of them." Because our analysis in an open records appeal is restricted to a determination of "whether the agency violated provisions of KRS 61.870 to 61.884," we do not address the apparent ambiguities or deficiencies in the records produced. Allegations of improprieties in the discharge of official functions cannot be adjudicated in an open records appeal, but may, upon sufficient evidence, be presented to the courts.
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