Request By:
Steven Farmer
P.O. Box 603
Dyersburg, TN 38025-0603Edward J. Rudd
Bracken County Attorney
P.O. Box 25
Brooksville, KY 41004-0025
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 Bracken County Attorney violated the Open Records Act in the disposition of Steven Farmer's undated request for "the original investigation into alleged child abuse, as certified . . . (in the . . . [attached] DSS-115) [that] was sent to [the Bracken County Attorney] and K.S.P." Having received no response to his request, on June 29, 2005, Mr. Farmer initiated this appeal. Based on the record on appeal, we find that the County Attorney's disposition of Mr. Farmer's request was procedurally deficient but substantively correct.
In correspondence directed to this office following commencement of Mr. Farmer's appeal, a copy of which was transmitted to Raymond S. Bogucki, an attorney representing Mr. Farmer, Bracken County Attorney Edward J. Rudd advised that upon receipt of Mr. Farmer's request he contacted Mr. Bogucki to explain that the County Attorney's "office does not conduct investigations" and that this "is the province of KSP, CFC, or some other INVESTIGATIVE agency or agencies." (Emphasis in original.) For this reason, Mr. Rudd asserted, he "ha[d] no records to send to anyone, including Mr. Farmer." In closing, Mr. Rudd indicated that he would not respond to Mr. Farmer directly "due to the ethical rules regarding contacting a party who is represented by counsel," but that he was transmitting a copy of his response to Mr. Bogucki. He expressed concern that Mr. Farmer is "apparently trying to coerce [him] into a violation of the ethical rules which . . . would be on KBA bar counsel's desk as soon as Mr. Farmer could get it there." While we understand Mr. Rudd's concerns relative to Mr. Farmer's intentions, existing legal precedent does not support his view that Supreme Court Rule 3.130(4.2), prohibits him from directly responding to Mr. Farmer's request. See, e.g. 97-ORD-71; 97-ORD-98; 99-ORD-64; 99-ORD-126. Nevertheless, we affirm Mr. Rudd's denial of Mr. Farmer's request on the basis of the nonexistence of the records identified in that request.
With reference to the issue of procedural noncompliance, consisting of the Bracken County Attorney's failure to respond to Mr. Farmer's request based on his concerns about a potential ethics violation, we note that in a line of open records decisions this office has observed:
OAG 82-169, p. 2. On the narrower issue of direct communication between an agency's employees, the agency's attorney, and a litigant, relative to the litigant's open records request, this office has concluded that Supreme Court Rule 3.130, Rule 4.2, does not prohibit such communications. 97-ORD-71; 97-ORD-98. That rule provides:
In 97-ORD-71, the Attorney General held that the fact that the requester was an attorney representing a party who was engaged in litigation with the agency that was the subject of his open records request did not relieve the agency of its duty to respond, or require the requester to address his request to the agency's attorney, Rule 4.2 notwithstanding.
In a case even more directly on point, the Attorney General affirmed 97-ORD-71, reasoning:
Although there are no Kentucky cases on point, this position finds support in a New York case, Fusco v City of Albany, 134 Misc. 2d 98, 509 N.Y.S.2d 763 (Sup. 1986). Faced with the same question, and construing a nearly identical rule of professional conduct, the New York Supreme Court held that the contention that the rule "prohibits an attorney for a litigant suing a governmental body from communicating with employees of that governmental body for the purpose of examining public records under the Freedom of Information Law" was erroneous. Id . at 766. The court noted:
The key language is that permitting an attorney to directly contact an adverse party when "authorized by law to do so." The Freedom of Information Law is a law authorizing such direct contact without the prior consent of the government's lawyer. Any other construction would thwart the legislative intent behind FOIL. . . .
Id . Kentucky's Rule of Professional Conduct contains the same key language. In our view, the logic of Fusco City of Albany can be extended to the present appeal.
97-ORD-98, p. 5, 6. In the latter decision, the requester/ litigant was a non-attorney and not bound by the Rules of Professional Conduct. We concluded that there was no impediment to direct communication between agency employees, the agency's attorney, and the litigant/requester relative to his open records request. See also, 99-ORD-64. With the exception of the restrictions on access to nondiscoverable records imposed on parties to litigation which is provided for at KRS 61.878(1), litigants stand in the same shoes as any other requester under the Open Records Act.
99-ORD-126, p. 3, 4. Extending this line of reasoning to the instant appeal, we find that the Bracken County Attorney was not foreclosed by ethical considerations from directly responding to Mr. Farmer's request, and that his failure to do so was inconsistent with the procedural requirements of the Open Records Act codified at KRS 61.880(1). We do, however, note that this violation was mitigated by Mr. Rudd's attempts to communicate with Mr. Farmer through Mr. Bogucki.
Turning to the substantive issue in this appeal, we find no error in the Bracken County Attorney's denial of Mr. Farmer's request on the basis of the nonexistence of the requested investigative file. Mr. Rudd indicates that his office did not conduct the referenced investigation and was not the recipient of the investigative file. He therefore is not the custodian of the records and cannot honor Mr. Farmer's request. In 05-ORD-115, a copy of which is attached hereto and incorporated by reference, this office addressed a similar issue involving the Kentucky State Police's denial of a request submitted by Mr. Farmer. At pages 2 and 3 of that decision, we opined:
[A] public agency is not required to honor a request for records which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 99-ORD-198; 98-ORD-200; 97-ORD-17; OAG 91-112; OAG 87-54; OAG 83-111. It stands to reason that the KSP cannot produce for inspection or copying that which it does not have. 02-ORD-118, p. 3. To clarify, the right to inspect attaches only after the requested records are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. In addressing the obligations of a public agency denying access to public records on this basis, the Attorney General has observed:
02-ORD-144, p. 3; 04-ORD-205.
Accordingly, this office has held that a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively so indicating as the KSP ultimately did here. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 04-ORD-046, p. 4; 03-ORD-205, p. 3. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 03-ORD-205, p. 3; 99-ORD-98. When an agency denies the existence of requested records, it is "not incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute" absent a reason to question the truthfulness of the agency's assertion. 01-ORD-36, p. 2; 04-ORD-205; 02-ORD-144; 94-ORD-140. Rather, the role of the Attorney General in adjudicating an open records dispute is narrowly defined by KRS 61.880(1), and this office is without authority to deviate from that statute.
Simply stated, the Bracken County Attorney cannot produce a record that he does not possess.
Nor does this appeal raise records management issues under KRS 61.8715, or warrant additional inquiry by the Kentucky Department for Libraries and Archives, per the discussion found at pages 3 through 5 of 05-ORD-115. Mr. Rudd indicates that the requested investigative records are not in his custody because his office did not conduct the investigation. This satisfies his obligations under the Open Records Act. Significantly, "records or information compiled and maintained by county attorneys . . . pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action." KRS 61.878(1)(h). Thus, if records responsive to Mr. Farmer's request were in the Bracken County Attorney's possession, those records would be permanently excluded from Mr. Farmer's inspection, and inspection by the public generally, by operation of KRS 61.878(1)(h). We therefore affirm the Bracken County Attorney's denial of Mr. Farmer'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.