Request By:
Robert Lee Kemper, Jr.
698 Long Fall Road
Box 108
Long Fall, KY 42729-8669Bonnie L. McGrath
Administrative Coordinator
Metro Development Center
444 S. Fifth Street
Louisville, KY 40202Matthew Lemme
Assistant Jefferson County Attorney
600 West Jefferson Street, Room 2086
Louisville, KY 40202Kris M. Carlton
Assistant County Attorney
531 Court Place, Suite 1001
Louisville, KY 40202
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 Louisville Metro Code Enforcement Board violated the Kentucky Open Records Act in addressing the request of Robert Lee Kemper, Jr. for "current certified copies of the Metro Louisville ordinances that were written and adopted pursuant to KRS 67C.117(3)," and "any documents that prove the Metro Louisville Inspections Permits and Licenses Department employees on staff at the time my citations were issued, the board that will hear my appeal and the board's support staff" meet all of the requirements "for inclusion of minority members as set forth in KRS 67C.117(1)(2) and (3)"; the remaining issues raised by Mr. Kemper are outside the scope of this appeal. Because the Board has acknowledged failing to comply with KRS 61.872(4), and remedied this error on appeal, further discussion of this procedural deficiency is unwarranted. In addition, the Board has apparently provided Mr. Kemper with a copy of the requested ordinances at no cost; any related issues are therefore moot. Although no existing document is entirely responsive to Mr. Kemper's second request, the Board has agreed to provide him with a copy of the only record which is potentially responsive upon receipt of a request for same; nothing more is required.
By electronic mail directed to Bonnie McGrath on May 27, 2006, Mr. Kemper submitted the aforementioned request, raising various issues related to his appeal of "citations issued per control number 241380," none of which are properly addressed in this forum. On June 21, 2006, Ms. McGrath advised Mr. Kemper, in relevant part, that he would "need to contact the appropriate divisions/agencies for any open records request you may have submitted." Acknowledged that his letter of appeal was "going to be hard to follow" as there are issues "other than document requests embedded in the correspondence attached," which he correctly assumed this office "would have no authority to do anything about," Mr. Kemper initiated this appeal by letter dated June 22, 2006. According to Mr. Kemper, his electronic request was followed "with a signed printed out copy of same that was also signed by Mildred Allen as a witness and sent certified mail addressed" to Ms. McGrath.
Upon receiving notification of Mr. Kemper's appeal from this office, Kris M. Carlton, Assistant Jefferson County Attorney, responded on behalf of the Board. To begin, Ms. Carlton notes that Mr. Kemper did not direct his request to "the Louisville Metro Government's listed Custodian of Records, who is Jane Driskell, Louisville Metro Department of Finance, nor to the Metro Council's Custodian of Records, who is Kathy Herron." 1 However, "Ms. McGrath did not follow the requirements of the Open Records Act, in that she told him to contact the appropriate agency for the records he sought, without providing him with the name and address of the custodian of records." 2 As explained by Ms. Carlton:
Upon receipt of Mr. Kemper's original open records request/request for appeal informati[on], Ms. McGrath attempted to determine which portion of the request was related to public records. She determined that Mr. Kemper was seeking a copy of the ordinance related to the [Board]. Ms. McGrath did not provide a certified copy, as requested, because she was not the custodian of those records. She did, however, print out a copy and send it to him by mail. She also attempted to answer Mr. Kemper's questions by telephone and email on several occasions. 3 However, even though Mr. Kemper was quite willing to submit all of his questions and requests via email, he told Ms. McGrath that her email responses may be rejected by the spam settings on the email address that he provided.
Having acknowledged that Louisville Metro did not provide Mr. Kemper with the name and address of the "proper custodian of ordinances, " as required by KRS 61.872(4), Ms. Carlton cures that deficiency by virtue of her response in advising this office/Mr. Kemper that such requests should be directed to Ms. Kathy Herron, Metro Court Clerk, 601 W. Jefferson Street, Louisville, KY 40202." 4
In addressing Mr. Kemper's second request, Ms. Carlton advises this office "there is not a specific document in existence that sets forth the percentage of minority members for the particular and finite categories supplied by Mr. Kemper." However, the "Louisville Metro Affirmative Action Plan" does contain "statistics and mandates" in connection with the statutory requirements cited by Mr. Kemper. Although this record "does not specifically address his request," it may "serve to satisfy him in its adherence to the state requirements for minority inclusion within Louisville Metro Government," since there is no document that contains the exact information requested.
In conclusion, Ms. Carlton acknowledges that "Mr. Kemper may not have received the information as explicitly set forth under the provisions of the Open Records Act. " However, the person to whom Mr. Kemper address his "ambiguous request, which he admits in his appeal is combined with matters extraneous to the open records request," believed that she had provided him with the requested records, and went further in contacting him by telephone and e-mail in an attempt to honor his requests. In Ms. Carlton's view, had Mr. Kemper complied with Louisville Metro Open Records policies, "then it would have been possible to discern what records he actually sought, and to comply more completely" with said policies, which "it is hoped, are now satisfied." With the noted exceptions, this office finds no error in the position of the Board.
As this office observed in 05-ORD-063, the Attorney General is "not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." Id. at p. 4, citing 99-ORD-121, p. 17. In other words:
This office has a precise and narrow function in connection with the interpretation and application of the Open Records Act. KRS 61.880(2)(a) requires that when a matter has been properly presented to the Attorney General for review, this office shall review the request and the denial and issue a written decision stating whether the agency violated the provisions of the Open Records Act. The Attorney General's responsibility and obligation, normally, is to determine whether a public agency has properly withheld public records from public inspection and whether a request to inspect public records was properly denied under the terms and provisions of KRS 61.870 to KRS 61.884.
96-ORD-120, p. 3. See also 05-ORD-006; 96-ORD-171; 96-ORD-142. To summarize, the role of the Attorney General in adjudicating a dispute arising under the Open Records Act is narrowly defined by KRS 61.880(2); this office is without authority to deviate from that statutory mandate. Accordingly, our analysis focuses exclusively on whether the Board complied with the Open Records Act in responding to Mr. Kemper's request for two categories of public records.
With respect to records and information already provided to Mr. Kemper by the Board in response to his request for the specified ordinances, any related issues are moot. 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has consistently held that when access to public records is denied initially but subsequently granted, the "propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140.
As previously noted, the Board is not obligated to provide Mr. Kemper with a certified copy of the ordinances, but did provide him with an uncertified copy of existing records that are responsive to his request. In addition, the Board has offered to provide Mr. Kemper with a certified copy of same, as requested, upon receipt of a written request and advance payment of the prescribed fee, including postage, in accordance with KRS 61.874(1). In addressing a claim regarding discrepancies between the records provided and those requested, the Attorney General recently observed:
Nevertheless, this office has consistently refused to adjudicate disputes concerning "discrepancies" in the records produced in response to an open records request. As noted above, at page 3 of 04-ORD-216 we recognized that "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are generally not capable of resolution under the Act." There a requester questioned the validity of invoices produced in response to a request, and the Attorney General advised that the relief sought was unavailable under the Act. See also, 02-ORD-89 (recipient of public records questioned quality and value of the information those records contained and Attorney General refused to consider this issue); 04-ORD-032 (recipient of public records questioned the degree of detail and "verifiability" of records produced in response to open records request and Attorney General characterized the question as one that did not arise under the Open Records Act) ; 04-OMD-182 (questions regarding authenticity of agency's meeting minutes not appropriate for review by Attorney General); 05-ORD-008 (questions concerning the value of information contained in records produced for public inspection are not justiciable in an open records appeal). Here, as in the cited decisions, we decline [Mr. Kemper's] invitation to assign error under the Open Records Act for "discrepancies" in the record produced for [his] inspection. If evidence of willful concealment of more accurate or current records exists, [Mr. Kemper] may wish to consider [his] options under KRS 61.991(2)(a) . Again, the Attorney General's Office is not the appropriate forum for resolution of such issues.
05-ORD-236, pp. 5-6.
Because the instant appeal presents no reason to depart from this line of decisions, the same result necessarily follows. Absent evidence to the contrary, this office assumes that Mr. Kemper has received a copy of any existing records that are responsive to his request for the relevant ordinances. Accordingly, this office must decline to issue a decision relative to those records per 40 KAR 1:030, Section 6. 5 Given our resolution of this issue, the remaining question is whether the Board properly responded to Mr. Kemper's request for documents establishing that Board employees satisfy the requirements of KRS 67C.117(1)(2) and (3).
As long recognized by the Attorney General, a public agency cannot afford a requester access to records which it does not possess or records which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 98-ORD-200; 91-ORD-17; OAG 87-54; OAG 83-111. A public agency obviously cannot produce for inspection or copying records 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 consistently observed that an 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." 02-ORD-144, p. 3, citing 01-ORD-38, p. 9; 04-ORD-205.
Accordingly, this office has also 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 indicating that no responsive records exist (or are in the custody of the agency), as the Board 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. Under circumstances like those presented, our duty is not "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 reiterate, our review is expressly limited by the language of KRS 61.880(2)(a).
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 by KRS 61.880(2)(c), an agency must offer some explanation for the nonexistence of the requested records (or lack of custody, as the case may be) at a minimum. See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 94-ORD-140 (records of subject investigation not in sheriff's custody because sheriff did not conduct the investigation). When, as is the case here, the agency denies indicates that no such records exist (or denied having custody) , of the requested records, and the record does not refute that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83.
Because the Board made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," as evidenced by the record, the Board complied with the Act, regardless of whether the search yielded a record containing the exact information requested, by notifying Mr. Kemper that no record matching the description provided was located, and providing a credible explanation for the lack of such a record. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-38; 97-ORD-161; OAG 91-101; OAG 90-26. However, the inquiry does not end there. "While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (original emphasis). In offering to provide Mr. Kemper with a copy of the potentially responsive Louisville Metro Affirmative Action Plan upon receipt of a request and payment for same, the Board has done the equivalent of this; nothing more is required. 6
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit 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 Pursuant to KRS 61.870(5): "Official custodian" means the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control[.]" As a precondition to processing a request, "the official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected." KRS 61.872(2). In addition, the application "shall be hand delivered, mailed or sent via facsimile to the public agency. " Accordingly, this office affirms the Board's position in this regard. When viewed in conjunction with KRS 61.876(1)(b) and KRS 61.880(1), these provisions mandate the appointment of an official custodian of records whose function is to process all requests that are received by the agency. As this office noted in 93-ORD-134, "we see nothing wrong with the . . . policy of processing open records requests through . . . [one office]. In our view, this policy [ensures] uniformity and adherence to the law." Id., pp. 10-11. Assuming the Board applies this policy in a consistent manner, this office finds the Board may properly require all requests to be routed through its official custodian to ensure the timely and orderly processing of same. 00-ORD-73, pp. 3-4.
2 KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
3 To the extent the Board failed to respond within three business days, as mandated by KRS 61.880(1), the Board's response was procedurally deficient, although the extraneous matters included by Mr. Kemper, as well as the attempts by Ms. McGrath to assist him via other means, serve to mitigate this error in our view.
4 If Mr. Kemper wishes to receive certified copies of the ordinances that have already been provided to him at no cost, he may submit a request to Ms. Herron, as noted by Ms. Carlton. However, Ms. Herron will then provide him with "the number of pages and postage cost," and Mr. Kemper "will need to provide payment in order to receive certified copies. " A review of KRS 61.874(3), KRS 61.874(1), and KRS 61.872(3)(b) validates this position. In short, the Open Records Act contains no waiver of fees for any party regardless of his or her financial status. "Simply stated, all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligation for receipt thereof." 94-ORD-90, p. 3. Accordingly, the Board acted in compliance with the Act in requiring prepayment of a reasonable copying charge that does not exceed the actual cost of duplication, and enforcing a standard policy relative to assessment of the charge.
To clarify, the Board was not required to provide Mr. Kemper with a certified copy of the record(s) at issue; a public agency is not statutorily obligated to "certif[y] . . . the appropriate records . . . in such manner that the same may be introduced as evidence in a Court of Law . . . ." Such a requirement does not exist in the Open Records Act. 03-ORD-207, p. 3.
5 Pursuant to KRS 61.882(1), the circuit court of the county where the principal place of business for the agency is located or the circuit court of the county where the public record is maintained "shall have jurisdiction to enforce the provisions of KRS 61.870 to 61.884[.]" Because a party alleging a violation of the Open Records Act is not required to exhaust his or her remedies under KRS 61.880 before filing suit in circuit court in accordance with KRS 61.882(2), the Attorney General's invocation of 40 KAR 1:030, Section 6 does not impede Mr. Kemper's ability to exercise this right.
6 In keeping with this position, the Attorney General has noted that if a requester is unable to identify the records sought for inspection with sufficient specificity, or wishes to extract information that has not already been compiled, he "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. " 98-ORD-17, p. 10, citing OAG 76-375, p. 3. Echoing this view, our office has found that "one desiring that lists be made, or that broad categories of information be provided, must expend their own time digging the information out unless it has already been compiled. " Id., citing OAG 89-61, p. 5.