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 Commerce Cabinet and Louisville Arena Task Force Vice-Chairman W. James Host 1 violated the Open Records Act in the disposition of James E. Milliman's requests for records "relating to the activities of the Louisville Arena Task Force." For the reasons that follow, we find that Mr. Milliman has adduced insufficient proof to support his allegation that these agencies failed to conduct an adequate search for responsive records. Moreover, we find that an open records appeal to the Attorney General is not the appropriate forum for adjudicating his claim of willful concealment of public records.
In the interest of brevity, we focus on only the salient facts giving rise to this appeal. Between September 20, 2005, and October 25, 2005, Mr. Milliman submitted four multi-part open records requests to Mr. Host and officials of the Commerce Cabinet. 2 The Cabinet and Mr. Host promptly responded to each of these requests by releasing 260 records. The Cabinet and Mr. Host elected to withhold only one record, a draft of the Task Force report entitled "Recommendations to Governor Ernie Fletcher," and a draft of the accompanying cover letter to Governor Fletcher, 3 characterizing the report and letter as "preliminary memoranda in which opinions are expressed or policies formulated or recommended," within the meaning of KRS 61.878(1)(j). 4
Apparently dissatisfied, Mr. Milliman initiated this appeal asserting that a review of the agencies' responses suggests "that additional responsive documents are available and are being willfully withheld, " and that "[a]t a minimum, . . . a thorough review of the responsive documents has [not] been made." He identifies specific discrepancies in Mr. Host's response to his October 25 request, in particular, Mr. Host's failure to supplement that response as promised. He further notes the omission of documents that were provided in response to earlier requests, and the production of alternate versions of documents earlier produced. Finally, he questions Mr. Host's failure to produce any written communication between Mr. Host and Lieutenant Governor Steve Pence, Chairman of the Task Force, remarking that the absence of any such communication "strains credibility to its limit."
In supplemental correspondence directed to this office following commencement of this appeal, Commerce Cabinet Deputy General Counsel Catherine York addressed each of these discrepancies, "vehemently den[ying] that [the Cabinet] has or is withholding documents, willfully or otherwise," other than the draft report discussed above. In her view, "[i]t strains the bounds of logical reasoning to conclude that governmental responses to the three open records requests responded to by the Cabinet are inadequate when the very documents used as the basis for that argument were promptly produced by the very Cabinet being accused."
On behalf of Mr. Host, 5 attorney Joseph H. Terry submitted supplemental correspondence to this office in which he acknowledged that Mr. Host "indicated in his November 8, 2005 response . . . that the Cabinet would supplement his request," but noted that Mr. Host:
was not aware that the Cabinet had previously responded to the same requests making complete disclosure and there was no need for a further supplemental response. The request had been addressed in the Cabinet's earlier response. Mr. Host did not maintain a copy of all Cabinet records after he left the position of Secretary.
It was Mr. Host's understanding, Mr. Terry explained, that "such documents were delivered on September 30, 2005, and on October 27, 2005." In defense of Mr. Host's statements that no records responsive to Mr. Milliman's October 25 request were in his possession, other than those produced, Mr. Terry noted that "at the time Mr. Host responded, he had returned his state computer and Blackberry together with his Louisville Arena file to the Cabinet." 6 "Any such records would have to be delivered by the Cabinet," Mr. Terry concluded, and this "is exactly what occurred."
The record on appeal demonstrates that the Commerce Cabinet and Mr. Host have produced numerous documents in response to Mr. Milliman's requests. The Cabinet and Mr. Host assert that no additional responsive records exist. When an agency's denial of an open records request is postulated on the nonexistence of records, the Attorney General has traditionally taken the position that the denial does not constitute a violation of the Open Records Act insofar as the agency cannot afford the requester access to a record or records that it does not possess. See, e.g., OAG 83-111; OAG 87-112; OAG 91-112; 97-ORD-17; 01-ORD-11; 02-ORD-120. Moreover, where some, but not all, of the requested records are disclosed, this office has generally declined to attempt to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 4 (emphasis added). We see no reason to depart from that position in the instant appeal.
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 KRS 194A.146, 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. Although there are occasions when, under the mandate of this statute, the Attorney General requests that a public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants additional inquiries by this office or referral to the Department for Libraries and Archives for additional action.
Mr. Milliman produces no specific evidence that the Commerce Cabinet and Mr. Host withheld records that are responsive to Mr. Milliman's request, and the Cabinet and Mr. Host have satisfactorily addressed any alleged discrepancies in the records released. "In assessing the adequacy of an agency's 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.'" 95-ORD-96, p. 7, citing Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977). Based on the number of records produced, it is apparent that the Cabinet and Mr. Host "made a good faith effort to conduct a search using methods that can reasonably be expected to produce the records requested." 95-ORD-96, p. 7. Ultimately, that search did not yield all of the records Mr. Milliman believes to exist. Our analysis, however, turns not on whether the fruits of the agencies' searches meet the requester's expectations, but whether they made a good faith effort to conduct such a search, and can then say, as unequivocally as the nonspecificity of the requests permit, 7 that no additional responsive records exist. In the absence of evidence calling into question the Cabinet or Mr. Host's good faith, we conclude that the Open Records Act requires nothing more. 8 Consistent with our statutory duty to enforce the rights and obligations of the parties in an open records dispute, we do not assign improper motives to Mr. Milliman, the Cabinet, or Mr. Host. In the end, "we assume a modicum of good faith from [all] parties: from the requester in formulating his request, and from the [agencies] in providing the records which satisfy the request." 93-ORD-15, p. 6. 9
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.
James E. MillimanMiddleton Reutlinger2500 Brown & Williamson TowerLouisville, KY 40202
W. James Host, Vice ChairmanLouisville Metro Arena Task Force500 Mero StreetCapital Plaza Tower, 24th FloorFrankfort, KY 40601
Catherine YorkCommerce CabinetOffice of Legal Affairs500 Mero StreetCapital Plaza Tower, 24th FloorFrankfort, KY 40601
Ellen Benzing, General CounselCommerce Cabinet500 Mero StreetCapital Plaza Tower, 24th FloorFrankfort, KY 40601
Footnotes
Footnotes
1 The October 25, 2005, request which, among other requests, gives rise to this appeal was addressed to Mr. Host in his capacity as Vice-Chairman of the Task Force, but was mailed to him at the office he occupied as Secretary of the Commerce Cabinet until October 14, 2005.
2 For example, Mr. Milliman's October 14 request to the Cabinet contains nine subparts. In subpart 1, Mr. Milliman requests access to:
All documents reflecting any and all communications, including correspondence, letters, email communications, notes, memoranda, electronic data, or otherwise exchanged by and between W. James Host, and Paul Coomes, that relate to the proposed location of an arena anywhere in Louisville, Kentucky.
3 The Cabinet provided Mr. Milliman with a copy of the final report and accompanying letter.
4 In addition to theexemption upon which the Cabinet relies, these documents clearly fall within the parameters of KRS 61.878(1)(i) as preliminary drafts. As this office noted in 97-ORD-183:
[A draft is] a tentative version, sketch, or outline of a formal and final written product such as the draft reports dealt with in OAG 89-34, 93-ORD-125, and 94-ORD-38.
5 Mr. Host does not dispute his status as a public agency for open records purposes.
6 See note 1, above. Mr. Host resigned as Commerce Cabinet Secretary on October 14, 2005.
7 "To require an unequivocal denial of a nonspecific request for records," this office has often stated, "is to impose a burden on the public agency which no custodian of records, or individual acting under his authority, can practically discharge." See, e.g., 96-ORD-101; 01-ORD-131.
8 In a recent opinion, the Kentucky Supreme Court analyzed the respective obligations of the parties in the event of an appeal arising from a denial based on thenonexistence of responsive records. The Court observed:
The Open Records Act is silent as to the procedure to be followed when a requester seeks to enforce the Act over a public agency's denial of the record's existence. The Act contemplates that an agency will deny an open records request when it believes that the requested records are exempt, but it does not envision a situation, as here, where the agency claims that the records do not exist. See KRS 61.880(1) ("An agency response denying ? inspection of any record shall include a statement of the specific exemption authorizing the withholding of the record ...."). Similarly, the Act's enforcement provisions assume that the parties will be litigating the viability of a claimed exemption over existing records, not the very existence of the records. See KRS 61.882(3) ("The court ? may view the records in controversy in camera before reaching a decision.").
. . .
The General Assembly has expressly declared the "basic policy" of the Open Records Act to be "that free and open examination of records is in the public interest ...."KRS 61.871. When faced with the present situation, the best way to uphold this policy is to ensure that the complaining party has an opportunity to disprove a public agency's denial of the existence of records. The allowance of an opportunity for such a hearing is also in accord with the Act's interrelation with the various statutes governing orderly maintenance and management of public records. KRS 61.8715. To hold otherwise could remove accountability from the open records process, allowing public agencies to avoid judicial review by denying a record's existence altogether rather than claiming a statutory exemption. Statutes must not be construed in a way that they become meaningless or ineffectual. Commonwealth v. Phon, 17 S.W.3d 106, 108 (Ky. 2000); Allen v. McClendon, 967 S.W.2d 1,3 (Ky. 1998). At the same time, the General Assembly has also evidenced a concern that public agencies not be unreasonably burdened and that essential functions not be disrupted by open records requests. KRS 61.872(6). The unfettered possibility of fishing expeditions for hoped-for but nonexistent records would place an undue burden on public agencies. In order to refute a complaining party's claims to a nonexistent record, the agency would essentially have to prove a negative, presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives. Therefore, we hold that before a complaining party is entitled to such a hearing, he or she must make a prima facie showing that such records do exist.
Bowling v. Lexington Fayette Urban County Government, Ky., 172 S.W.3d 333, 340, 341 (2005) (emphasis added).
9 This is not the appropriate forum for review of Mr. Milliman's claim that responsive records are being willfully concealed. KRS 61.990(2)(a) establishes a penalty for public officials who willfully conceal or destroy public records with the intent to violate the Open Records Act. Evidence of willful concealment or destruction of public records, if it exists, must be presented to the local prosecutorial authorities. The Attorney General is not empowered to render a decision on this question.