Request By:
David Wilson
402 Danville Street
Lancaster, KY 40444E. J. Hasty
Garrard County Judge-Executive
3 Courthouse
15 Public Square
Lancaster, KY 40444Jeff Moss
Garrard County Attorney
102 Stanford Street, Suite 2
Lancaster, KY 40444
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 Garrard County Judge-Executive violated the Kentucky Open Records Act in failing to provide David Wilson with copies of the "'Rhodus Sanitation Company franchise contract'" and "all contractual agreements between Garrard County and Prewitt's Sanitation." Although the Judge-Executive supplemented his response upon locating the "Instructions to Bidders," a record which partially addresses the concerns expressed by Mr. Wilson, as presiding officer of the Garrard County Fiscal Court, the Judge-Executive must either affirmatively indicate that no written contracts exist, or provide Mr. Wilson with copies of the actual contracts, in order to fully discharge his duty pursuant to the Open Records Act.
By letter dated December 25, 2005, Mr. Wilson initiated this appeal from the "apparent failure of the Garrard County Judge Executive" to provide him with copies of the "rural garbage collection contracts." On both occasions (Mr. Wilson submitted his requests on November 1, 2005, and December 5, 2005), Mr. Wilson received copies of the "Contractor's Bid Form" without further explanation; a copy of the Bid Form is attached to his letter of appeal. Accordingly, Mr. Wilson assumed these documents were the "contract" requested. At the regular meeting of the Fiscal Court on December 12, 2005, Mr. Wilson inquired as to "why both of these contracts had been extended without bids. " In response, Judge E. J. Hasty advised Mr. Wilson "that the contracts contained provisions to permit extensions without bids. " However, the "Contractor's Bid Form" contains no such provision. As of December 25, 2005, the date on which Mr. Wilson directed his appeal to this office, Mr. Wilson had "not been provided with these elusive contracts."
Upon receiving notification of Mr. Wilson's appeal from this office, Jeff Moss, Garrard County Attorney, responded on behalf of Judge Hasty. To begin, Mr. Moss acknowledges that Mr. Wilson's factual allegations with respect to the meeting of December 12, 2005, are correct. Following discussions with Judge Hasty, the enclosed document entitled "Instructions to Bidders" 1 was located "within the records of a member of the Garrard County Solid Waste Committee." 2 As observed by Mr. Moss, the specific provision to which Judge Hasty referred can be found at "Paragraph 3.0, Term of Contract." 3 Because the document was not found among the records of the Judge-Executive or in his office, Mr. Moss contends that Judge Hasty did not violate the Open Records Act as Judge Hasty is not required to "produce records for which he is not the custodian. " After further consultation with the Judge-Executive, Mr. Moss asserts there are "no other documents in his possession" regarding the "current contracts" with Mr. Rhodus and Mr. Prewitt. Should Mr. Wilson wish to review "earlier documents," those records should be available through Stacy May, Garrard County Clerk, "as a part of the Fiscal Court minutes. " If Judge Hasty locates other responsive records, copies will be forwarded to Mr. Wilson "in a timely manner."
Having implicitly acknowledged the existence of the "current contracts" in asserting there are no additional documents in his possession regarding same, the Judge-Executive failed to conduct an adequate search for the requested records absent an explanation for his inability to produce such contracts. Consistent with a line of decisions dating back to 1995, this office finds it is incumbent on the Judge-Executive to conduct a search that can reasonably be expected to produce the records requested; an adequate search would encompass records in the physical custody of the County Clerk, who apparently serves as the Fiscal Court Clerk as well, on the facts presented in our view. As long recognized by the Attorney General, a public agency cannot honor a request for records that it does not possess or 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; 91-ORD-17; OAG 91-112; OAG 87-54; OAG 83-111. 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 consistently observed:
[A]n agency's inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [other citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient.
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 indicating that no responsive records exist. 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. In responding to Mr. Wilson's appeal, the Judge-Executive references "current contracts" and further indicates that "earlier documents" would be available from the County Clerk, as documented in the minutes of Fiscal Court meetings, thereby creating ambiguity as to whether any conventional written contracts exist. Either way, Mr. Wilson is entitled to receive copies of the responsive documentation. 4
When an agency denies access on this basis, it is "not 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; 04-ORD-205; 02-ORD-144; 94-ORD-140. To the contrary, the role of the Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(2)(a); this office is without authority to deviate from that statutory mandate. In other words, this office is not "empowered to go beyond the written record to determine whether public employees and officials purposefully attempted to avoid public scrutiny by failing to create a paper trail." 00-ORD-16, p. 5.
In 1994, the General Assembly recognized an "essential relationship between the intent of [the Open Records Act] and those statutes "dealing with the management of public records, " and "the coordination of strategic planning for computerized information systems in state government" with the enactment of KRS 61.8715. To ensure "the efficient administration of government and to provide accountability of government activities, public agencies are required to maintain their records according to the requirements of these statutes." Id. Since this provision of the Open Records Act took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based upon the nonexistence of the requested records. In order to satisfy the burden of proof imposed upon public agencies per KRS 61.880(2)(c), an agency must offer some explanation for the nonexistence of the requested records at a minimum. See 04-ORD-075; 03-ORD-059; 01-ORD-246; 00-ORD-120; 98-ORD-47; 97-ORD-17; 94-ORD-140. Although this office will not speculate regarding the specific records management procedures adopted by the Fiscal Court/Judge-Executive, nor does the record contain any evidence to suggest the Judge-Executive has acted in bad faith, a mechanism does or should exist by which the Judge-Executive can locate and retrieve specifically identified records of such a limited class maintained by the Fiscal Court.
In 95-ORD-96, the Attorney General articulated the following standard for determining the adequacy of a search conducted by a public agency:
[T]he Open Records Act does not require an agency to conduct "an exhaustive exhumation of records," Cerveny v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D.N.Y. 1983). It is, however, incumbent on the agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, supra at 775. Thus, the agency must expend reasonable efforts to identify and locate the requested records. And, if the documents do exist, and the public agency cannot locate them, the agency's "good faith [sh]ould not be impugned unless there was some reason to believe that the supposed documents could be located without an unreasonably burdensome search." Goland v. Central Intelligence Agency, 607 F.2d 339, 353 (D.C. Cir. 1979). In assessing the adequacy of an agency search, we "need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).
Id., pp. 7, 8. As evidenced by the record, the Judge-Executive directed his search to the "first and most obvious place" where records relating to the contracts requested or the actual contracts were likely to be located, namely, the files maintained by his office; to the extent the Judge-Executive went "above and beyond" in an attempt to locate standard contracts, it raises the issue of why such records were not readily accessible. 04-ORD-242, p. 4.
Local government agencies are required to maintain "Contracts and Agreements" such as those requested until "15 years after completion or termination and audit (KRS 413.090)." Local Government Records Retention Schedule , p. J1, Series No. L5014, Disposition Instructions. Neither the initial nor the supplemental response of the Judge-Executive affirmatively denies the existence of responsive contracts. To the contrary, the Judge-Executive indicates there are "no other documents in this possession" regarding the "current contracts," with the necessary implication being that such contracts do exist. In addition, the Judge-Executive expresses uncertainty as to whether the County Clerk possesses "earlier documents" which may be responsive to Mr. Wilson's request. That being the case, an adequate search by the Judge-Executive would extend to potentially responsive records maintained by the County Clerk, individual members of the Solid Waste Committee, as well as support staff, and any other location "that could reasonably be expected to produce the records requested." 95-ORD-96, p. 7. To hold otherwise would elevate form over substance.
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 Paragraph 1.0 Receipt and Opening of Bids provides:
The Garrard County Fiscal Court invites and will receive bids on the forms attached hereto at the office of E.J. Hasty, County Judge/Executive, Garrard County Courthouse, Lancaster, Kentucky 40444 . The bids will be presented to the Fiscal Court at its regularly scheduled meeting of February 11, 2003, which begins at 9:30 A.M. The court will then evaluate the bids and supporting information, with assistance from representatives of the Garrard County Solid Waste Committee, and select the best bid. Garrard County Fiscal Court reserves the right to reject any, or all, bids. (Emphasis supplied).
2 Absent further explanation, this office assumes that members of the Committee were appointed by Judge Hasty and/or the Fiscal Court or is the Committee is composed of Fiscal Court members.
3 Paragraph 3.0 Term of Contract provides:
The term of this Contract for Exclusive Franchise will be for a three (3) year period beginning April 1, 2003. The parties agree that by mutual consent, each expressed in writing and received at least one hundred and eighty (180) days before termination of the current term end on March 31, 2006, that this Contract may be extended for an additional period of two (2) years on the same terms and conditions set forth in this contract unless otherwise negotiated to the satisfaction of the Garrard Fiscal court and the Contractor.
4 To avoid such confusion, the Judge Executive/Fiscal Court should display a copy of the rules and regulations pertaining to public records adopted in compliance with KRS 61.876(1) "in a prominent location accessible to the public," per KRS 61.876(2), including the "title and address of the official custodian of the public agency's records," if the rules and regulations are not currently posted.