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 City of Georgetown violated the Open Records Act in the disposition of Aaron Wilson's March 17, 2006, request to inspect:
1. All documents Judy Richardson said were transmitted on 867.6991 and printed by the associated fax machine on March 16, 2006;
2. The audio cassette (s) which contain(s) the conversations transmitted on 863.7826.
Noting the apparent absence of the KRS 61.876 rules and regulations governing access to records of the Georgetown Police Department, Mr. Wilson also requested that the city adopt same and post them in a prominent location. For the reasons that follow, we find that although the City of Georgetown's responses were untimely, those belated responses were largely consistent with the requirements of the Open Records Act.
Mr. Wilson's request bears a date stamp indicating that it was received on March 17. Appended to his request are several handwritten notations, the first of which are also dated March 17, and read:
No audiotape exists 03-17-06
Request sent to Judy Richards 3-17-06
Immediately following these handwritten notations, the following handwritten notations appear:
We do not keep records of sent or received faxes
Judy Richardson 3-29-06
The concluding handwritten notations which appear at the bottom of Mr. Wilson's request and continue on the reverse side state:
Open records laws are posted in lobby of P.D.
SS
Dictaphone was struck by lightning and is inoperable.
SS
Mr. Wilson is requesting all faxes sent to GDP on March 16, 2006. I explained to Mr. Wilson that this request cannot be filed. It is impossible to track them.
SS
On March 31, Mr. Wilson initiated this appeal, questioning the city's procedural compliance with the Open Records Act and the content of its posted rules and regulations.
By letter dated April 10, 2006, Georgetown City Attorney Charles M. Perkins responded to Mr. Wilson's letter of appeal, confirming the accuracy of Ms. Richardson's statement that the city does "not keep records of sent or received faxes" but acknowledging the delinquency of her response. He explained that in order to fulfill Mr. Wilson's request "[t]he department would have to review every file, desk and trash container to retrieve even a portion of the faxes received that day." With reference to Mr. Wilson's request for audio cassettes, Mr. Perkins confirmed the nonexistence of the records, the records having apparently been destroyed when the "[d]ictaphone was struck by lightning and [became] inoperable." Mr. Perkins again acknowledged the delinquency of the city's responses. Having considered the arguments advanced by the parties on appeal, we find that the city's disposition of Mr. Wilson's request was procedurally deficient but substantively correct.
In a recent decision, the City of Georgetown was admonished for failure to comply with the procedural requirements of the Open Records Act. See, 06-ORD-089 (enclosed). We will not unnecessarily lengthen this decision with a recapitulation of these requirements. Suffice it to say that the city has acknowledged these violations and undertaken remedial measures to correct same.
Turning to the substantive issues in this appeal, we find no error in the city's denial of Mr. Wilson's request to inspect "[a]ll documents Judy Richardson said were transmitted on 867.6991 and printed by the associated fax machine on March 16, 2006." In 99-ORD-14, this office addressed a similar issue, concluding that the Revenue Cabinet properly invoked KRS 61.872(6) in denying an impermissibly vague request. It is instructive to revisit pertinent portions of that decision:
KRS 61.872(6) provides:
In construing this provision, the Attorney General has observed:
92-ORD-1261, p. 3. The records to which [the applicant] requested access were not identified with "reasonable particularity, " nor were they of an identified, limited class. The Cabinet correctly notes that "such records may number in the thousands." Given the lack of specificity of this request, the Cabinet could not estimate the number of records it encompassed or the amount of time its employees would expend in locating, retrieving, and producing the records.
[The applicant] asked that the Cabinet provide her with copies of all records relating to her or containing her name for a four year period. In order to comply with such a request, the Cabinet would be required to review every record, regardless of physical form or characteristics, which was prepared, owned, used, in the possession of or retained by it in that period, to determine if [the applicant's] name appears in or on the record or if it relates to her. As the Cabinet correctly notes, this would include "home address lists, birthday lists, e-mail messages, case filings, routine correspondence and a myriad of other documents." Although "it is the legislative intent that public agency employees exercise patience and long-suffering in making public records available for public inspection, "OAG 77-151, p. 3, public employees "are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time." OAG 76-375, p. 4. As framed, [the applicant's] request imposes an unreasonable burden on the Cabinet.
99-ORD-14, p. 4, 5 (emphasis added).
Although Mr. Wilson's request is confined in scope to a single day, and almost certainly does not implicate thousands of records, it is apparent that the city would be required to review every record which came into its possession on March 16, 2006, in order to comply. Each employee would have to be queried, and every file cabinet and desk examined in order to locate responsive records, and such a search is still unlikely to produce the desired result. Simply put, there is no way to trace the incoming faxes to the employees who received them or the locations in which they were filed without considerably more information. The city confirms this in its assertion that it "would have to review every file, desk, and trash container to retrieve even a portion of the faxes received that day." We agree. As framed, Mr. Wilson's request imposes an unreasonable demand on the city.
With reference to Mr. Wilson's request for audio cassettes containing conversations transmitted on 863.7826, we again affirm the city's denial on the basis of the nonexistence of the records sought. It is well established that a public agency cannot afford a requester access to a record which does not exist. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17; 97-ORD-103. In general, it is not our duty to investigate in order to locate documents which the requesting party maintains exist, but which the agency states do not exist.
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 requirement of [KRS 171.410 to 171.740, dealing with the management of public records, and 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]." 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.
Since these amendments took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based on the nonexistence of the requested records. 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) ; 98-ORD-47 (audit not in University's custody because it was never reduced to writing); 00-ORD-120 (x-rays of inmate's injuries not taken and therefore responsive record did not exist); 03-ORD-059 (radio run tapes were erased and reused in a manner consistent with applicable records retention requirements and were therefore not available for review).
The record on appeal confirms that no responsive audio cassettes exist because they were destroyed when the recording devise was struck by lightning. The City of Georgetown therefore offers a reasonable explanation for the nonexistence of the particular records Mr. Wilson requested. There is nothing in the record on appeal that "appears to raise the issue of good faith," and we therefore decline "to question the [city's] veracity." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977) cited in 95-ORD-96, 02-ORD-188, and 03-ORD-093. While there may be occasions when, under the mandate of KRS 61.8715, the Attorney General refers an open records appeal and decision to the Department for Libraries and Archives for further inquiry under Chapter 171, we do not believe that this appeal warrants additional inquiries. The city has satisfied its statutory burden of proof by explaining why no responsive records exist. We find no error in its response to Mr. Wilson's request.
With reference to Mr. Wilson's complaint concerning the apparent absence of rules and regulations prescribed by KRS 61.876(1) and (2), the city responds that they "had been misplaced and, when attention was called to the fact, replaced." Nevertheless, we remind the city that in decisions dating back to 1976, this office has held that KRS 61.876(1) and (2) are facially unambiguous, requiring agencies to adopt and post open records rules and regulations, and declared that the failure to do so constitutes a violation of the Act. In a later decision, the Attorney General opined that "the rules and regulations contemplated by KRS 61.876 are a 'how-to' for persons who wish to submit an open records request," and that the referenced provision "is aimed at protecting the public by requiring a public agency to educate individuals on its particular policies and practices relative to open records." 94-ORD-12, p. 6. The statute is also aimed at protecting the public agency from excessive disruption of its essential functions and its records from damage and disorganization. 99-ORD-141, p. 8. "The spirit of the Act," we have observed, "mandates the broadest possible dissemination of an agency's rules and regulations, although the letter of the law does not specifically designate where the rules must be posted. " 93-ORD-83, p. 4.
KRS 61.876(1) "establish[es] a minimum standard for agency compliance." 95-ORD-49, p. 4. An agency:
complies with this provision if it adopts rules and regulations limited to the items set forth in KRS 61.876(1)(a) through (d), or if it adopts more comprehensive rules and regulations supplementing the list of items.
So long as those rules and regulations conform to the provisions of the Open Records Act, and do not fall below the minimum standard set forth in KRS 61.876(1), the agency fully complies with the law. We urge the City of Georgetown to bear these observations in mind in insuring future compliance with the Open Records Act.
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.