Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of Beaver Dam violated the Kentucky Open Records Act in denying the request of Jeremy Nance, the appellant's brother, for copies of "All records pertaining to complaints against Jason Sparks," Beaver Dam "police officer/ firefighter, " and five other named city employees, the results of any complaints, "and action taken in regar[d to] the complaints including disciplinary action. " Because the City does not possess any records which are responsive to his request, the City ultimately discharged its statutory duty by affirmatively indicating as much to Mr. Nance, although any responsive records generated as a result of the closed session would be subject to inspection if any such records existed. 1 Insofar as the record does not contain clear and convincing evidence that Mr. Nance intended to disrupt other essential functions performed by the City, or that honoring his request would otherwise be "unreasonably burdensome, " the City has not satisfied its burden of proof relative to KRS 61.872(6) . To the extent that Mr. Nance's request is duplicative, an issue which this office is unable to resolve on the existing record, the City is not statutorily obligated to honor his request absent some explicit justification for reproducing identical records. Assuming the truth of this assertion, the City therefore did not violate the Act in refusing to satisfy Mr. Nance's request on this basis assuming that the City has provided Mr. Nance with copies of any existing records in its custody which were responsive to his prior identical requests.
By letter dated November 7, 2004, Mr. Nance submitted a written request for records concerning "complaints against city personnel" to City Clerk Brenda Dockery. More specifically, Mr. Nance requested all records concerning complaints against Jason Sparks, Chris Sheperd, Nancy Miller, Leroy Embry, and Aaron Creek, the "results" of those complaints, and any action taken relative to the complaints, including disciplinary action. 2 In a timely written response, Ms. Dockery requested "the dates of complaints filed and who made the complaints," indicating that the City would proceed to answer Mr. Nance's request upon receiving this information. 3 However, Mr. Nance declined to clarify his request in a reply dated November 22, 2004, which was received by the City on November 29, 2004, due to the Thanksgiving holiday. On December 3, 2004, Justin S. Keown, City Attorney, advised Mr. Nance that the City Clerk had provided him with "all of the records." It is the City's belief that Mr. Nance has in his possession all of the records which he previously requested. As observed by Mr. Keown:
The City of Beaver Dam has had to divert a considerable amount of attention to your repeated request[s] for records. These repeated requests have caused a considerable drain and burden on City resources. For that reason, we are specifically denying any request which requires our office personnel to copy any and all files which should already be in your possession. This [denial] is based on KRS 61.872[(6)] which states[:] "If the applica[tion] places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence. " It is our belief Mr. Nance that this seems to be a situation in which you are trying to disrupt the essential functions of the City of Beaver Dam and the Beaver Dam Fire Department. The City of Beaver Dam has decided that they will no longer honor your requests until required to do so [by] the Attorney General due to the number of requests and the fact that those requests involve records that we have previously produced for you.
Acting on Mr. Nance's behalf, Ms. Cannon now appeals from this denial of his request.
Over the last several months, both Ms. Cannon and Mr. Nance have requested records "that reflect the business" of the City and the BDFD. According to Ms. Cannon, her brother recently filed a complaint against Jason Sparks alleging inappropriate conduct. Although the City addressed the complaint, it "will not reveal the results." Denying that repeated requests have been submitted, Ms. Cannon contends this is merely another attempt by the City to conceal the truth regarding how both the City and the BDVD operate.
Upon receiving notification of Ms. Cannon's appeal from this office, Mayor Pate responded on behalf of the City. To the best of her knowledge, as of January 20, 2005, the City has only received a written complaint against Jason Sparks. In other words, the City does not have in its possession any written complaints against the other individuals named. In conclusion, Mayor Pate reiterates that the written complaint filed against Officer Jason Sparks was dealt with appropriately by the City Commission during a closed session, the City provided Mr. Nance with materials describing the employee conduct policy as requested, and Ms. Dockery responded to the subject request in writing on November 8, 2004.
By letter dated January 24, 2005, Mr. Keown elaborates on the City's position. With respect to the letter directed to Mr. Nance on December 3, 2004, Mr. Keown explains that he wrote this letter "due to the fact that Jeremy Nance had on numerous occasions requested records from both the City of Beaver Dam and the [BDFD]." Even though Mr. Nance "was not abiding by the proper procedures" established by the City for submitting a request, the City and the BDFD honored his requests. On a "number of occasions," the requests involved records already provided to Mr. Nance, but the City would "again produce the same records." Complying with his requests consumed a "considerable amount of the city employees' time, in fact, taking them away from other job duties and responsibilities." Volunteer firefighters had to come in and spend "countless hours copying the same records over and over again." For this reason, the City informed Mr. Nance that it would no longer honor any requests "for records that had already been given to him." Nowhere in the letter did the City inform Mr. Nance that it "would not honor requests for records that had not previously been provided."
In reference to the request dated November 7, 2004, Mr. Keown confirms that the City Clerk responded on November 8, 2004. According to Mr. Keown, Mr. Nance requested the same records one month earlier, at which point Mayor Pate informed him that the only responsive record was the complaint filed by Mr. Nance against Jason Sparks, which "was handled in closed session. " Mr. Nance "incorrectly believed" that numerous records regarding this issue were generated. To the contrary, a complaint was filed "and a verbal warning was made to the officer." 4 Therefore, no "written action" was taken on the matter. 5 Upon receiving a copy of the City's supplemental response, Ms. Cannon replied via facsimile received by this office on January 28, 2005. According to Ms. Cannon, neither she nor her brother has made "repeated requests," but if any request "remotely seems a repeated request" it is because the City/BDFD did not properly furnish the requested records the first time.
With respect to disagreements of this nature between a requester and a public agency, the Attorney General has consistently observed:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully[,] any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-61, p. 2, citing OAG 89-81, p. 3; 04-ORD-177; 04-ORD-036; 03-ORD-204. As in the cited decisions, the record on appeal does not contain sufficient documentary evidence concerning either the number or the content of prior requests submitted by Mr. Nance, or by Ms. Cannon on his behalf, for the Attorney General to conclusively resolve this factual issue.
Turning to the substantive issue presented, the City has explicitly denied having possession of any records which are responsive to Mr. Nance's request as framed, and further denied that any such records exist, with the exception of the written complaint against Officer Sparks filed by Mr. Nance. As long recognized by the Attorney General, a public agency "cannot provide access to records that it does not have or which do not exist." 03-ORD-205, p. 3, citing 99-ORD-98; 02-ORD-145; 01-ORD-36; 97-ORD-17; 93-ORD-134; OAG 91-203; OAG 91-112; OAG 87-54; OAG 83-111. "Nor is it incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2. Because the inability of the City to produce the requested records "due to their apparent nonexistence is tantamount to a partial denial" of Mr. Nance's request, it was incumbent on the City to so indicate in "clear and direct terms." 02-ORD-145, p. 3, citing 01-ORD-38, p. 3; 00-ORD-083; 97-ORD-16; 96-ORD-164. An agency discharges its duty under the Open Records Act by affirmatively indicating that the requested records do not exist as the City ultimately did here. 03-ORD-205, p. 3 (citation omitted). When an agency denies the existence of requested documents, it is not our function to investigate in order to locate the documents absent a reason to question the truthfulness of the agency's assertion. 03-ORD-220, p. 2. See also 02-ORD-144 and 94-ORD-140. No such reason has been presented here. It is the function of this office to review the course of action taken by a public agency, not to find the documents that a party is seeking to inspect. Id., citing OAG 86-35, p. 5; 02-ORD-145. "We are not empowered to go beyond the written record to determine whether [City] employees and officials purposefully attempted to avoid public scrutiny by failing to create a paper trail." 00-ORD-16, p. 5.
Although there are occasions when the Attorney General requests that an agency substantiate a denial based on the nonexistence of requested records by documenting any efforts made to locate responsive records or explaining the absence of such records consistent with the mandate of KRS 61.8715, 6 additional inquiry is not warranted on the facts presented. 04-ORD-046; 02-ORD-118; 01-ORD-36. To the contrary, the City has provided a credible explanation as to why no additional records exist such as the "results" of the complaints requested, or documentation reflecting any action taken, including disciplinary action, namely, that no complaints were filed against the named individuals with the noted exception, hence no "results" or final action other than the verbal warning given to Officer Sparks exist. Because the City is necessarily unable to provide "that which it does not have," and has now discharged its duty to affirmatively indicate as much to Mr. Nance and Ms. Cannon, it is the decision of this office that the City did not violate the Open Records Act in this regard.
In support of its position, the City relies partially upon KRS 61.872(6), which provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
The purpose and intent of the Open Records Act is to permit "the free and open examination of public records. " KRS 61.871. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review. Where the records requested are of an identified, limited class, the requester satisfies this condition. If a public agency then invokes KRS 61.872(6) as a basis for denying access to those records, the agency bears the burden of establishing, by clear and convincing evidence, that honoring the request would impose an unreasonable burden on it. 00-ORD-72, p. 3. "This burden is not sustained by the bare allegation that the request is unreasonably burdensome. " 00-ORD-72, p. 4. In other words, "mere invocation of the cited exception does not sustain the agency's burden." Id. See OAG 89-79.
Only in the event that an agency has adduced evidence to support a finding that the burden is indeed unreasonable, will the Attorney General uphold its action. 00-ORD-180; 00-ORD-72. Such is not the case here. Although the record reflects that the City advanced this argument in good faith, an unsubstantiated allegation that the City has previously provided Mr. Nance with copies of the requested records, and that copying the same records repeatedly occupied a "considerable amount" of time, is not sufficiently detailed to satisfy this intentionally high standard. In our view, the analysis employed by this office in 04-ORD-28, a copy of which is attached hereto and incorporated by reference, is equally determinative on the facts presented. Because the City's response does not contain the degree of specificity envisioned by KRS 61.872(6), the City erred in denying Mr. Nance's request on this basis. In so holding, this office does not suggest that the City could not at some point build a successful case pursuant to KRS 61.872(6), only that the City has not done so here.
In closing, this office reiterates that a public agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6; 00-ORD-226. As consistently recognized by the Attorney General:
We do not believe, however, that [an agency] is required to satisfy the identical request a second time in the absence of some justification for resubmitting that request. KRS 61.872(2) provides that "[a]ny person shall have the right to inspect public records" during regular office hours or by receiving copies through the mail. Common sense dictates, however, that repeated requests for the same records may become unreasonably burdensome or disrupt the agency's essential functions. Thus, at page 6 of OAG 92-91 this office observed:
95-ORD-47, p. 6. (Emphasis added); 00-ORD-226. Unless a requester such as Mr. Nance can explain the necessity of reproducing the same records which have already been released to him, such as loss or destruction of the records, this office does not believe that an agency such as the City must satisfy the same request multiple times.
A party aggrieved by this decision may appeal it by initiating an 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.
Sarah Nance CannonP.O. Box 501Beaver Dam, KY 42320
Brenda DockeryCity Clerk309 W. Second StreetP.O. Box 408Beaver Dam, KY 42320
Mary L. Pate, MayorCity of Beaver Dam309 W. Second StreetP.O. Box 408Beaver Dam, KY 42320
Justin E. KeownConway & Keown124 West Union StreetP.O. Box 25Hartford, KY 42347
Footnotes
Footnotes
1 In relevant part, KRS 61.815(1) provides:
Except as provided in subsection (2) of this section, the following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:
(c) No final action may be taken at a closed session [.]
(Emphasis added). Unless the personnel matter to be discussed relates to the appointment, discipline, or dismissal of an employee, the matter must be discussed in open session. If the discussion is properly focused on one of these topics, as appears to be the case here, it is incumbent on the agency to identify which of these topics will be discussed upon invoking the relevant exception, KRS 61.810(1)(f), and the agency is " foreclosed from taking any final action in that closed session. " 99-ORD-133, p. 3. (Emphasis added).
2 In a letter dated October 12, 2004, Mary L. Pate, Mayor, notified Mr. Nance that the Beaver Dam City Commission "discussed the complaint" filed against Beaver Dam police officer Jason Sparks during the regular scheduled City Commission Meeting last evening on October 11, 2004." According to Mayor Pate, the "[p]ersonnel issue was dealt with appropriately." As requested, the City also provided Mr. Nance with material describing the "employee conduct policy," a copy of which is attached to Ms. Cannon's letter of appeal along with a copy of 04-ORD-105, the decision issued by this office as a result of the appeal filed by Mike Nance, father of Ms. Cannon and Mr. Nance, against the City of McHenry/McHenry Volunteer Fire Department.
3 Contrary to Ms. Cannon's implicit assertion, a request for clarification is not properly characterized as a denial. 04-ORD-198, p. 3; 04-ORD-083; 03-ORD-067. See 04-ORD-198, pp. 3-6, for the analysis employed by this office in determining whether a request is framed with sufficient clarity.
4 Although Mr. Keown indicates that Mr. Nance made a verbal complaint against Officer Sparks, Mr. Keown advised this office by letter dated January 26, 2005, that the City subsequently clarified that Mr. Nance made a written complaint, but received a verbal warning.
5 In closing, Mr. Keown declined to address "any further comments or unfounded allegations of fraud or cover-up accusations made by Ms. Cannon." As the record is devoid of evidence to support the allegations made by Ms. Cannon, further discussion of this issue is unwarranted. More to the point, such issues are outside the scope of our review in the context of an open records appeal. KRS 61.880(2)(a) narrowly defines the role of the Attorney General in adjudicating disputes arising under the Open Records Act, and this office is without authority to deviate from that statute.
6 In relevant part, KRS 61.8715 provides:
The General Assembly finds an essential relationship between the intent of this chapter and that of KRS 171.410 to 171.740, dealing with the management of public records, . . . and 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 these statutes.