Request By:
Richard Nolan
P.O. Box 312
Lawrenceburg, KY 40342Bobbie Jo Lewis
Anderson County Attorney
216 South Main Street
Lawrenceburg, KY 40342John Williams
Administrator
Anderson County Health Department
208 South Main Street
Lawrenceburg, KY 40324
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 Anderson County Health Department violated the Open Records Act in the disposition of Richard Nolan's October 25, 2004, request to inspect public records relating to that agency and its septic system site evaluation process. For the reasons that follow, we find that ACHD substantially complied with the requirements of the Act, and that it erred only in its failure to afford Mr. Nolan the opportunity to inspect the requested records prior to furnishing him with copies per his request.
In his October 25 request, Mr. Nolan identified nine categories of records which he wished to inspect. Items one through five can generally be described as requests to inspect financial and operational records maintained by ACHD. On behalf of ACHD, Anderson County Attorney Bobbi Jo Lewis promptly notified Mr. Nolan that these requests would be honored to the extent that responsive records existed, offering brief explanations for the nonexistence of some requested records 1 and seeking clarification on other requested records. 2
The remaining four categories of requested records, relating to the ACHD septic system site evaluation process, were identified as follows:
6. Regulations pertaining to the septic system site evaluation process which [Mr. Nolan] was told by the current inspector were changed about six months ago which he says now require [him] to submit 33 site evaluation requests and pay $ 4950.00 in fees before [his] Mooreland Woods Subdivision Plat Phase 3B can be signed and filed, in spite of the fact that [his] subdivision plat was approved by the ACHD in October 2002.
7. Records showing which subdivisions have been required to comply with the above regulation.
8. Reports or other documentation of any receipts under the newly amended regulation referred to above which would identify the specific lots that such evaluations were performed on.
9. Reports prepared pursuant to each such evaluation showing the design and location of such septic system on each lot.
"With regard to regulations pertaining to septic system site evaluation processing," ACHD explained, "any procedural/policy change . . . will be contained in the minutes of the meetings" provided to Mr. Nolan. With regard to his request for "reports prepared pursuant to each such site evaluation showing the design and location of such septic system on each lot," Ms. Lewis advised:
At this time, there are no reports which will indicate the design and location of the septic system. According to [ACHD] reports are not prepared until each such lot is sold and the prospective owners provide the size of the structure, etc. and the installer provides a layout.
Although Ms. Lewis did not specifically remark on the other requests relating to the site evaluation process, it was apparently ACHD's intent to honor those requests by compiling existing records deemed responsive 3 and providing Mr. Nolan with copies upon prepayment of copying and postage charges. Objecting to ACHD's proposed mode of delivery of the records, to wit, the mailing of copies of the records rather than the production of the records for inspection, Mr. Nolan initiated this appeal, characterizing the agency's "non-responsive" response as "typical of the 'none of your business attitude' of the ACHD."
Upon receipt of this office's notification of appeal, Ms. Lewis amplified on ACHD's position, asserting that "Mr. Nolan's request has not been denied," and that "all the documentation has been compiled and [is] ready for inspection either by providing copies or physical inspection, whichever Mr. Nolan chooses." She advised that ACHD's original response directly addressed items 1, 2, 5, and 9 because clarification or an explanation was required, but "[t]here are no problems with Mr. Nolan inspecting this documentation in his chosen manner."
Following submission of this supplemental response, the parties to this appeal engaged in verbal sparring in a series of letters directed to this office. These letters demonstrate that their dispute is only secondarily related to the Open Records Act and records access, and is primarily a dispute relating to the imposition of a $ 4,950.00 fee on Mr. Nolan for site evaluation on a subdivision plat which ACHD approved in 2002, and his belief that ACHD intends "to hold [his] plat hostage until [he] pa[ys] up pursuant to" a regulation or policy that apparently came into existence after this plat was approved. He seeks a concession from ACHD that records do not exist to support the existence of a regulation, or other subdivisions to which the phantom regulation has been applied, and thus to establish that he has been singled out for disparate treatment. Respectfully, we conclude that the Attorney General's Office is not the appropriate forum for resolution of this issue. Our review focuses, instead, on whether ACHD violated the Open Records Act.
ACHD substantially complied with KRS 61.880(1) in responding to Mr. Nolan's October 25 request by compiling records that were, at least in its view, responsive to that request within three business days of receipt of the request, and notifying him, in writing, of the disposition of the request. KRS 61.880(1) 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.
In construing this provision, the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). The record on appeal establishes, beyond cavil, that ACHD expended considerable time and effort in compiling the records to which Mr. Nolan requested access, seeking to explain any omissions and clarify any ambiguities in the records produced, and prepared a timely written response documenting these efforts. Mr. Nolan does not object to the substance of that response but to the absence of responsive information in the records produced or the absolute failure to produce responsive records.
With reference to the latter issue, this office has long recognized that a public agency cannot provide access to records which do not exist. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; 97-ORD-17. We have also recognized that it is not our duty to investigate in order to locate documents on behalf of a requester who claims that they must exist notwithstanding the agency's claim to the contrary. 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 of KRS 11.501 to 11.517, 45.253, 171.420, 186A.040, 186A.285, and 194B.102, dealing with the coordination of strategic planning for computerized information systems in state government]." 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. 04-ORD-032, p. 3. Although there are occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its action by demonstrating what efforts were made to locate a record or explaining why no record was generated, the facts of this appeal do not warrant additional inquiry by this office. ACHD produced records which, in its view, contained information responsive to Mr. Nolan's request. We are not inclined to question ACHD's veracity when nothing in the record appears to raise the issue of good faith.
With reference to the former issue, this office has also recognized that "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, page 3, note 1 (reporter questions validity of invoices produced in response to request, and Attorney General advised that relief sought was unavailable under the Act); see also, 02-ORD-89 (recipient of public records questioned quality and value of the information those records contained and Attorney General refused to consider this issue); 04-ORD-032 (recipient of public records questioned the degree of detail and "verifiability" of records produced in response to open records request and Attorney General characterized the question as one that did not arise under the Open Records Act) ; see also 04-OMD-182 (questions regarding authenticity of agency's meeting minutes not appropriate for review by Attorney General.) Here, as in the cited decisions, we conclude that questions relating to the value of information contained in records produced for public inspection are not justiciable in an open records appeal.
Nevertheless, we find that ACHD erroneously interpreted Mr. Nolan's request to inspect public records as a request for copies of those records and improperly attempted to impose reproduction and postage charges on him in advance of producing the copies. On this issue, the Attorney General has observed:
KRS 61.872(1) provides that "[a]ll public records shall be open for inspection by any person , except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right." Subsection (2) of that provision states that " [a]ny person shall have the right to inspect public records ." KRS 61.872(3)(a) and (b) make it clear that the Open Records Act contemplates records access by two means: Onsite inspection during the regular office hours of the agency, or receipt of the records from the agency through the mail. Finally, KRS 61.874(1) provides that "[u]pon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof . . . ."
In interpreting these provisions, the Attorney General has consistently recognized that an applicant may properly assert a right to inspect nonexempt public records. Thus, in OAG 76-375 we held that if an applicant cannot identify the records he desires with sufficient specificity, or wishes to extract information which has not already been compiled, he must be permitted to "make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency . . . ." OAG 76-375, p. 3. We reaffirmed this position five years later when we held that a request to the secretary of Natural Resources and Environmental Protection for broad categories of records from a period of 1976 to 1981 was not unreasonably burdensome. In OAG 81-198, the applicant asserted the right "to inspect the . . . documents during the regular office hours of the department . . . ." OAG 81-198, p. 4. The Attorney General concluded that the applicant had "not made any demand on [the] agency which is beyond the scope of the Open Records Law." Id.
. . .
[S]ubject to the provision that the agency may adopt rules and regulations in conformity with the Open Records Act to provide full access to public records, to protect public records from damage and disorganization, and to prevent excessive disruption of its essential functions, the decision whether to conduct an on-site inspection of the records rests with [the requester] . KRS 61.876(1). "Unreasonable restrictions upon inspection may not be imposed." OAG 89-81.p. 4
97-ORD-12, p. 4, 5. Regardless of whether the agency's error was intentional, as Mr. Nolan suggests, or unintentional, as the record on appeal suggests, we urge ACHD to carefully scrutinize incoming open records requests to insure that its disposition of those requests conforms to the requester's wishes.
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 Mr. Lewis explained that ACHD could not produce the compensation or expense reimbursement records of board members which Mr. Nolan had requested because board members are not compensated.
2 Ms. Lewis asked whether Mr. Nolan's request for "the past three calendar years of [ACHD] board meetings," encompassed "the partial year of 2004 . . . ."
3 In subsequent correspondence, Ms. Lewis explained that ACHD attempted to honor Mr. Nolan's request for "records showing which subdivisions had been required to comply with the regulation, " and his request for "reports or other documentation of any receipts under the newly amended regulation . . . identify[ing] the specific lots [on which] evaluations were performed," by releasing "receipts which were issued to the subdivision owner for the date paid, amount paid, and lots paid for" through which he could ascertain "which subdivisions have complied with the new procedure and the lots they paid for."