Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Garrard County Judge/Executive relative to David Wilson's request for records relating to county garbage contracts violated the Open Records Act. For the reasons that follow, we find that the actions of the agency were consistent in part and inconsistent in part with the requirements of the Act.
By letter dated January 31, 2006, Mr. Wilson submitted the following open records request to the Garrard County Judge/Executive:
I am requesting copies of, or an appointment to review and copy, the following public records related to the Prewitt and Rhodus garbage contracts:
In his letter of appeal, Mr. Wilson stated that, in response to his request, he received some current certifications of insurance and solid waste report forms. He indicated there was "no correspondence accompanying Judge Hasty's reply. " In his letter, Mr. Wilson further advised:
I am seeking the original documentation required by the "Instructions to Bidders" . None of the records provided were responsive to my request. I believe the records should be maintained in files required by the Records Retention Schedule Series L5015.
After receipt of notification of the appeal and a copy of the letter of appeal, Jeff Moss, Garrard County Attorney, provided this office with a response on behalf of the county to the issues raised in the appeal. In his response, Mr. Moss advised:
The Fiscal Court does not have in its possession any Performance Bonds "related to the Prewitt and Rhodus garbage contracts."
The Fiscal Court does have in its possession four Certificate(s) of Liability Insurance "related to the Prewitt and Rhodus garbage contracts." These documents were previously submitted by Judge Hasty to Mr. Wilson and have been attached to his appeal in this matter. The documents contain the name of the individual garbage service to which they apply. In addition to the prior responses, an additional Certificate of Liability Insurance for Rhodus Garbage Service is attached hereto. This document was provided to William Hack, Garrard County Solid Waste Coordinator, on February 21, 2006 and was not in the possession of the Fiscal Court until that time.
At the time of Mr. Wilson's January 31, 2006 request was received the Fiscal Court did not have in its possession any Disposal Site Certifications "related to the Prewitt and Rhodus garbage contracts." On February 21, 2006 Doug Rhodus provided William Hack, Garrard County Solid Waste Coordinator, with the attached Memorandum from Tri-K Landfill, Inc. It is my understanding that this document was prepared at the request of Rhodus Garbage Service. This document was not in the possession of the Fiscal Court until February 21, 2006.
The only "other bid supporting data" in the possession of the Garrard County Fiscal Court are the Municipal Solid Waste (MSW) Collector and Recycler Registration and Report Forms previously submitted by Judge Hasty to Mr. Wilson and attached to his appeal. Each of these documents lists the name of the Collector.
In a reply to Mr. Moss' response provided to this office, Mr. Wilson asserts that the response was only partially responsive to his request and explained he is seeking bid supporting documents related to the Prewitt and Rhodus garbage contract bids that were submitted three years ago.
To begin, Mr. Wilson indicated in his letter of appeal that no correspondence accompanied the agency's initial response to his request, just the records that the agency was providing. In its supplemental response, the agency advised that certain requested records did not exist. 1 This fact should have been provided to Mr. Wilson in writing in the agency's initial response. This failure to respond in writing was inconsistent with the requirements of KRS 61.880(1), which contains the procedural guidelines for public agency response to an open records request. KRS 61.880(1) requires the agency to "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 . . . notify in writing the person making the request, within the three (3) day period of its decision." Thus, we find the agency's failure to respond to the request in writing was a violation of KRS 61.880(1) and the Open Records Act.
The supplemental response submitted by Mr. Moss advised that the agency does not have any performance bonds in its possession related to the garbage contracts that Mr. Wilson requested. With respect to the obligations of an agency denying access to public records on this basis, this office has observed:
[A]n agency's inability to produce records due to their non-existence is tantamount to a denial and . . . it is incumbent upon 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 do not exist, a written response that does not clearly so state is deficient.
02-ORD-144, p. 3. The supplemental response of Mr. Moss advising that certain of the requested records do not exist was consistent in part with the Act, however it was deficient insofar as it failed to provide some explanation for the nonexistence of the records. 01-ORD-038. In order to satisfy its statutory burden of proof, an agency must, at a minimum, offer some explanation for the nonexistence of the records. See, for example, 94-ORD-140 (records of investigation not in sheriff's custody because sheriff did not conduct investigation); 97-ORD-17 (evaluations not in university's custody because written evaluations were not required by university's regulations).
In the appeal before us, the agency did not provide Mr. Wilson with an explanation for the nonexistence of certain requested bid documents. In failing to do so, it did not sustain its statutory burden of proof relative to the partial denial of his request. KRS 61.880(2)(c). These omissions in the disposition of Mr. Wilson's request constituted a violation of the Open Records Act.
In his letter of appeal, Mr. Wilson asserts that the original bid records he requested should be maintained in files required by the Records Retention Schedule Series L5015. Bid records are public records subject to a records retention schedule, such as L5015 Series records. No. L5015 records are described as:
Bid Files -- Successful (May include the invitation to bid, legal notice for newspaper bid specifications, bid proposal, notice to bidders, list of bidders, bid sheets of bidders, administrative orders, draft copies contracts/agreements. Pre-construction information, copies of minutes of progress meetings, correspondence, and purchase orders. This records series is used to document vendors that have successfully bid on goods and services.)
Disposition instructions read: Destroy 3 years after specifications met or completion of contract or agreement and audit. The supplemental response of the Office of the Garrard County Judge/Executive does not indicate whether the original bid documentation no longer exists or whether it has been lost, or destroyed under the disposition instructions of a Records Retention Schedule Series. Thus, we have insufficient information before us in this appeal to address this possible records management issue. 2 However, the agency should respond to Mr. Wilson's requests for inspection of the original bid documentation, if such exist, or provide an explanation as to why it does not.
Finally, Mr. Wilson has acknowledged that he has received some records responsive to his request, but indicates that other requested records have not been provided. The Office of the County Judge/Executive has advised that it has provided records responsive to his original request. Regarding disagreements of this nature between a requester and a public agency, this office in OAG 89-81, stated:
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. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
In his letter of appeal and reply letter to this office, Mr. Wilson seeks to explain the records he is seeking and clarify which records he has asked for and has not received. Many of the records issues appear capable of resolution by cooperation and communication between the parties. Accordingly the parties should consult and mutually cooperate to resolve any differences or misunderstandings related to the records sought.
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 Although the agency supplemented its response upon receiving notification of this appeal, a response issued pursuant to 40 KAR 1:030, Section 2 should be viewed as an opportunity to supplement rather than to supplant an agency's denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. Accordingly, this office considers supplemental responses which correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or which offer additional support for the agency's original denial.
2 KRS 61.8715 provides:
[T]o 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 61.870, et seq., the Kentucky Open Records Act, KRS 171.410 to 171.740, relating to public records management, and KRS 61.940 to 61.959, relating to strategic planning for computerized information systems.]
The General Assembly has thus recognized an "essential relationship" between the intent of the Open Records Act and statutes relating to proper records management and maintenance. KRS 61.8715. It is, however, for the Department for Libraries and Archives, and not the Attorney General, to assist the public agency in determining whether it is fully discharging its duty to manage and preserve records containing "adequate and proper documentation of the organizational functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish information necessary to protect the legal and financial rights of the government and of persons directly affected by the agency's activities." KRS 171.640. Accordingly, pursuant to KRS 61.8715, we have referred the matter to the Department for Libraries and Archives for review under KRS Chapter 171.