Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Clark County Attorney Gardner D. Wagers violated the Kentucky Open Records Act in partially denying the request of Dale Emmons for "all public records" regarding a specified building located at "7 West Lexington Avenue, Winchester, Kentucky." Insofar as Mr. Wagers requested that Mr. Emmons clarify the scope of his request as to "all invoices submitted to the Commonwealth of Kentucky and/or the Office of Clark County Attorney and/or the Office of Clark County Child Support Services," Mr. Wagers' response is not properly characterized as a denial. Assuming that Mr. Emmons is requesting only those invoices relating to said property, Mr. Wagers ultimately discharged his duty under the Open Records Act by affirmatively indicating in a written response that no such records exist. If, on the other hand, Mr. Emmons intended for his request to encompass additional invoices, Mr. Wagers has demonstrated a willingness to comply upon receiving further clarification; nothing more is required given the context.
By letter directed to Mr. Wagers on September 11, 2006, Mr. Emmons submitted a request which "is to cover a period commencing from the date on which [Mr. Wagers] assumed the position of Clark County Attorney in January 1999 and extend through the date of this communication." It was/is Mr. Emmons' understanding that Mr. Wagers and "Mr. John H. Keeton, who serves as Assistant Clark County Attorney, jointly own a commercial building located at 7 West Lexington Avenue, Winchester, Kentucky[,]" at which "some of the county attorney's official business is conducted." As observed by Mr. Emmons, the "sign on said building reads as follows":
"CLARK COUNTY CHILD SUPPORT SERVICES GARDNER D. WAGERS/CLARK COUNTY ATTORNEY"
Therefore, Mr. Emmons requested "all public records indicated below on this property owned by you and Mr. Keeton (hereafter "Wagers & Keeton")." (Emphasis added). 1 More specifically, Mr. Emmons requested:
1. An accounting of any and all payments, related to the aforementioned property, made by the Commonwealth of Kentucky and/or the Clark County Attorney's office to Wagers & Keeton.
2. Copies of all invoices submitted to the Commonwealth of Kentucky and/or the Office of Clark County Attorney and/or the Office of Clark County Child Support Services.
3. Copies of all canceled checks or check images used to pay Wagers & Keeton, representing rent or lease payments, improvements or utilities paid for same by the Clark County Attorney's office and/or the Commonwealth of Kentucky.
4. Copies of all rental/lease agreements, including any amendments or renewals, between Wagers & Keeton and the Commonwealth of Kentucky and/or Office of Clark County Attorney and/or the Office of Clark County Child Support Services.
In a timely written response, Mr. Wagers advised Mr. Emmons that the "facility is used solely for the business of the Office of the Clark County Child Support Services, a grant-funded entity, operating under contract with the Cabinet for Health & Family Services." With regard to "Wagers & Keeton," Mr. Wagers further clarified that "an entity known as 'Wagers & Keeton, PSC' did exist; however, that entity has been dissolved and no longer exists." That being said, Mr. Wagers noted that Mr. Emmons' request "is taken to refer to the building located at 7 West Lexington Avenue as it relates to payments made to me, individually, and to Mr. Keeton, individually. If that assumption is wrong, please notify me immediately."
Having set forth Mr. Emmons' request in its entirety, Mr. Wagers addressed each category of records in turn. With regard to Items 1, 3, and 4, "in accord with the Clark County Open Records Policy, the documentation requested in those paragraphs is available for inspection in the Office of the Clark County Attorney, Monday through Friday from 8:00 a.m. through 4:00 p.m." However, Mr. Wagers advised Mr. Emmons that he "may wish to contact [the Office] in advance to schedule an appointment and facilitate prompt access to those records." In the alternative, Mr. Wagers offered to provide Mr. Emmons with "copies of those records by mail at a cost of $ 0.10 per page" for a total cost, "including certified mail delivery," of $ 20.80 (140 pages at $ 0.10 per page, plus $ 6.80 for certified priority mail postage)[,]" which must be paid in advance. In the event Mr. Emmons preferred "to pick up the copies, the cost, payable in advance is $ 14.00 (140 pages at $ 0.10 per page). Payment must be by check or money order as [the Office does] not accept cash." In Mr. Wager's view, Item 2 of Mr. Emmons' request "is overly broad" as framed; he was therefore "unable to determine the extent" of the request and whether [Mr. Emmons] requested invoices pertaining only to the payments to which [he] refer[red] in [Item 1]." Accordingly, Mr. Wagers denied that request "until further clarified. "
On September 18, 2006, Mr. Emmons initiated this appeal from the denial of his request as to Item 2, noting this category "would encompass all invoices and requests for payments by [Mr. Wagers], his office, or his employees." Upon receiving notification of Mr. Emmons' appeal from this office, Mr. Wagers elaborated upon his position, in relevant part, as follows:
First and foremost, Mr. Emmons has strangely omitted the follow-up communication subsequent to my letter of September 15, 2006. Mr. Emmons replied to my letter with his September 18, 2006, letter, a copy of which is enclosed. 2 In that letter, he expanded his request and, of course, threatened litigation. I immediately followed up with my letter to him dated September 20, 2006, and sent the records that he had previously requested. 3 I also clarified my response to his numerical paragraph 2 which is the subject of this appeal. A copy of that reply is also enclosed.
As you can see from the September 20, 2006, letter to Mr. Emmons, I explained the difficulty that I have in interpreting his request and further assumed that he was referring to the property located at 7 West Lexington Avenue. With that assumed clarification, I replied that there were no invoices submitted to any agency by the owners of that building.
. . .
Given his thirty plus years in the political field and given the campaigns in which he has been involved, it should be fair to say that Mr. Emmons has quite a good bit of expertise in drafting open records requests.
However, numerical paragraph 2 of his open records request dated September 11, 2006, defies understanding. It simply is not readable within the context in which it is stated. I must point out that his preamble to his four numerical paragraphs clearly states that he is requesting "all public records indicated below (underline added) on this property owned by you and Mr. Keeton." Thus, it should seem clear that his numerical paragraph 2 would refer to that building. If that is the case, then I have responded that there are no invoices submitted to the Commonwealth, Office of Clark County Attorney or Office of Clark County Child Support Services by the owners of that building.
On the other hand, if there are other invoices that he is seeking, then he needs to state that with clarity.
. . .
I any event, I have responded fully to Mr. Emmons's request. I also stated to Mr. Emmons, clearly, that:
As correctly noted by Mr. Wagers in response, "each of the other three numerical requests contained in [Mr. Emmons'] September 11, 2006, request seem to clearly refer to the building." However, the request in subparagraph 2 "seems to be overly broad and not related specifically to the building. In fact, you have previously requested copies of many travel expenses and other related items for which you have received copies of invoices, etc." For this reason, Mr. Wagers reasonably assumed that Mr. Emmons' request had been satisfied as to those records. In addition, Mr. Wagers noted that Mr. Emmons expanded his original request in asking for "any other documents which describe this "'grant funding.'" Since Mr. Emmons' original request did not encompass this category of records, Mr. Wagers denied it "in that it is overly broad and purports to encompass untold numbers of documents." While Mr. Wagers' position is valid on both counts (timing and content), this office is precluded from considering any issues raised by this subsequent correspondence between the parties because Mr. Emmons filed his appeal contemporaneously with his letter of September 18, 2006, prior to receiving Mr. Wagers' response; Mr. Wagers also failed to include a copy of same for this office to review. Accordingly, our analysis focuses exclusively on the original request and response.
To begin, the somewhat contentious nature of the relationship between the parties has no bearing on the outcome of this appeal; neither the identity of the requester nor his purpose in requesting access is relevant generally speaking. As consistently recognized by this office:
In rendering a decision under the Open Records Act, the Attorney General is not concerned with "heroes and villains." Our review is limited to the legal and factual issues with which we are presented. Our decisions reflect a reasoned and objective resolution of these issues. It is our statutory duty to enforce the rights and obligations of the parties in an open records dispute, not to malign or praise those parties. In the final analysis, we assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his request, and from the official custodian in providing the records which satisfy the request.
93-ORD-15, p. 6; See also 05-ORD-099; 96-ORD-185. In other words, our review is confined to issues arising under the Open Records Act. 4
When viewed in context, Mr. Emmons' request for "all invoices submitted . . ." during the specified timeframe appears to mean relative to "a commercial building located at 7 West Lexington Avenue, Winchester, Kentucky." In our estimation, Mr. Wagers' interpretation is entirely credible in light of Mr. Emmons' prefatory remarks. As consistently recognized by the Attorney General, a request for clarification is not properly characterized as a denial. See 04-ORD-083; 03-ORD-067. Access to public records is governed by KRS 61.872, pursuant to which:
(3) A person may inspect the public records:
In other words, the Open Records Act contemplates access to records "by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. " 03-ORD-067, p. 4. 5 Therefore, a requester that both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. Id. As in this case, a "requester whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of the records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52, 96-ORD-186." Id., p. 5; 04-ORD-011. 6 In construing this provision, the Attorney General has observed:
KRS 61.872(3)(b) places an additional burden on requesters who wish to access public records by receipt of copies through the mail. Whereas KRS 61.872(2) requires, generally, that the requester "describe" the records which he wishes to access by on-site inspection, KRS 61.872(3)(b) requires the requester to "precisely describe[]" the records which he wishes to access by mail.
A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside University Dictionary 926 (1988); "strictly defined; accurately stated; definite, " Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963). We believe that a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in definite, specific and unequivocal terms the records he wishes to access by mail.
03-ORD-067, p. 5, citing 97-ORD-46, p. 3; 04-ORD-011. Until Mr. Emmons describes the records requested with the requisite specificity, Mr. Wagers cannot be expected to honor his request.
On appeal, the Mr. Wagers reiterates that no records matching the description provided exist if his assumption regarding the scope of the request is correct. As long recognized by the Attorney General, a public agency is not required to honor a request for records which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 99-ORD-198; 98-ORD-200; OAG 91-112; OAG 87-54; OAA 83-111. Said another way, a public agency cannot afford a requester access to records that it does not have or which do not exist. 03-ORD-205, p. 3, citing 99-ORD-98. Rather, the right to inspect attaches only after the requested records are "prepared, owned, used, in the possession of or retained by a public agency. " 02-ORD-120, p. 10. Such is apparently not the case here.
However, the inability of Mr. Wagers to produce the requested records due to their apparent nonexistence "is tantamount to a denial," of Mr. Emmons' request so it was incumbent on Mr. Wagers to notify Mr. Hardin that no records fitting the description provided exist "in clear and direct terms." 02-ORD-144, p. 3. (Emphasis added). While a public agency obviously cannot furnish that which it does not have or which does not exist, "a written response that does not clearly so state is deficient." Id. Accordingly, the Attorney General has long 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," 98-ORD-154, p. 2, citing 97-ORD-161, p. 3, with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively so indicating as Mr. Wagers did here. 04-ORD-046, p. 4; 03-ORD-205, p. 3, citing 99-ORD-98.
When an agency denies the existence of requested records, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute" absent a reason to question the truthfulness of the agency's assertion. 01-ORD-36, p. 2; 04-ORD-059. In short, the limited function of this office in adjudicating an appeal filed pursuant to the Open Records Act is to review the course of action taken by a public agency, and issue a written decision indicating whether the agency violated the Act, not to locate the records at issue. KRS 61.880(2)(a); 03-ORD-205, p. 3, citing OAG 86-35, p. 5. "We are not empowered to go beyond the written record to determine whether agency employees and officials purposefully attempted to avoid public scrutiny by failing to create a paper trail." 04-ORD-059, p. 4, citing 00-ORD-16, p. 5. Absent evidence that Mr. Wagers is required to generate and maintain records matching the description provided, this office must conclude that his office did not violate the Act.
Pursuant to KRS 61.8715, 7 there may be occasions when the Attorney General will require a public agency to substantiate a denial based upon the nonexistence of records by documenting the efforts undertaken to locate the records or explaining why no such records were created. On the facts presented, further inquiry is simply not warranted. Because the Office of the Clark County Attorney made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," and has complied with the statutory mandate to notify Mr. Emmons in writing that no responsive records were located, the Office has discharged its duty relative to Emmons' request. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-138; 97-ORD-161; OAG 91-101. In closing, this office encourages the parties to continue communicating and working toward an amicable resolution of this dispute -- Mr. Emmons in formulating his request, and Mr. Wagers in locating any responsive records.
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 With regard to requests for "any and all" records of a certain kind, 05-ORD-057, a copy of which is attached hereto and incorporated by reference, contains the relevant analysis.
2 In his reply, Mr. Emmons noted that "with signage of this now defunct PSC continuing to be posted prominently upon the office located [at] 7 West Lexington Avenue, it creates confusion as to the actual enterprise occupying this facility." To "clarify and refine" hisoriginal request, Mr. Emmons asked for the following relative to said building:
1. A copy of this contract and earlier contracts for this office.
2. A detailed accounting of all payments made to the owner, owners, or ownership entity as compensation for rent/lease/ use/utilities or other payments to satisfy this contract and prior contracts for this facility.
3. Any other documents which describe this "grant funding."
In conclusion, Mr. Emmons clarified that his request for all invoices submitted to the named parties "would encompass all invoices and request[s] for payments by you, your office or your employees."
3 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 which are the subject of a request is initially denied but subsequently granted, the "propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. Because Mr. Emmons has received a copy of any existing records which are responsive to Items 1, 3, and 4 of his request, any related issues are now moot. Accordingly, this office must decline to issue a decision as to those records.
4 In addressing factual disputes between arequester and a public agency, the Attorney General has likewise repeatedly observed:
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. It seems clear that you have permitted inspection of some records the requester has asked to inspect, and that copies of some records have been provided. Hopefully, any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-061, p. 2, citing OAG 89-81, p. 3; See also 03-ORD-204.
5 At issue in 03-ORD-067 was whether the Jefferson County Clerk had subverted the intent of the Act in his disposition of a request for the name and zip code associated with a specified address. In finding no substantive violation, this office observed that a county clerk's office "is equipped to readily locate a deed if a precise description, namely deed book and page number, is provided." Id., p. 5. Likewise, the Office of the Clark County Attorney is equipped to locate records which are responsive to Mr. Emmons' request, as it has done in the past, upon receiving clarification as to which of the potentially responsive records are being requested, assuming such records exist. When a requester provides the clerk (or records custodian) with a sufficiently detailed description, "the clerk [custodian] is required to mail [the requester] a copy of the deed [specified records] upon prepayment of reasonable copying charges not to exceed ten cents per page and postage charges." Id. However, if the requester (Mr. Emmons) is unable to provide the requisite identifying information, it is not incumbent on the clerk (or records custodian) "to make extraordinary efforts to identify, locate and retrieve the records in order to copy and mail [the records] to the [requester] ." Id., p. 5 (citation omitted).
6 In addressing the degree of specificity required, this office has recognized:
An open records request should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the request does not require "the specificity . . . of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government." 95-ORD-49, p. 5, citing Providence Journal Company v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.R.I. 1978). Instead, the requester should submit "a brief and simple request for the [government] to make full disclosure or openly assert its reason for nondisclosure." Id. Requests must be framed with sufficient clarity and directness to enable the custodian of records to identify and retrieve the records [the requester] wishes to access. This, as we have so often noted, is a precondition to inspection of public records. See e.g., 92-ORD-1261, and authorities cited therein.
03-ORD-012, p. 3, citing 99-ORD-140, p. 6.
7 In relevant part,KRS 61.8715 provides:
The General Assembly finds an essential relationship between the intent of [the Open Records Act] , dealing with the management of public records, and of [the chapters] dealing with the coordination of strategic planning for computerized information systems in state government; and 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 these statutes.