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 Lexington-Fayette Urban County Government's Office of the Citizens' Advocate violated the Open Records Act in the disposition of Ralph E. Brumagen's August 28, 2006, request to inspect "[a]ny and all files/paperwork on a Ralph E. Brumagen". Having received no response to his request, Mr. Brumagen initiated this open records appeal. For the reasons that follow, we make no finding on the issue of procedural noncompliance arising under KRS 61.880(1) , but conclude that the agency's final disposition of Mr. Brumagen's request was only minimally sufficient and that it is incumbent on the agency to indicate, in more specific terms, what steps were taken to locate responsive records.
By letter dated September 25, 2006, LFUCG Attorney Senior Keith Horn advised this office that the Office of the Citizens' Advocate "had no knowledge of Mr. Brumagen's request." He explained that the individual to whom the request was addressed, former Citizens' Advocate John Wigginton, died in 2002, and that, assuming the letter was mailed as indicated, it may have been misdirected or returned. Continuing, he indicated that upon receipt of this office's notification of receipt of Mr. Brumagen's open records appeal, the Office of the Citizens' Advocate "checked to see if they had any documents responsive to his request . . .[, but was] unable to locate any documents relating to Mr. Brumagen." A copy of this response was mailed to Mr. Brumagen.
We begin our analysis by noting that although Mr. Brumagen furnished this office with a copy of his August 28, 2006, request addressed to "John Wigginton, Citizens' Advocate, Government Center, 200 E. Main Street, Lexington, KY 40507," the Office of the Citizens' Advocate maintains that it has no record of receipt of the request. Because of the factual inconsistencies in the record on appeal, we make no finding as to the agency's compliance with the procedural requirements of the Open Records Act codified at KRS 61.880(1). Accord, 06-ORD-105; 05-ORD-252; 03-ORD-224; 02-ORD-226. We are not equipped to resolve a dispute concerning the actual delivery and receipt of an open records request. Nevertheless, we remind the parties to this appeal that the procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. If Mr. Brumagen's open records request reached the Office of the Citizens' Advocate, that office should have exercised greater caution to insure that it was not misdirected or returned regardless of the individual to whom it was directed.
Turning to the substantive issues in this appeal, we note that the Office of the Citizens' Advocate conducted an unsuccessful search for records responsive to Mr. Brumagen's request. It is well established that a public agency cannot afford a requester access to records which do not exist. See, for example, OAG 83-111; OAG 87-54; OAG-91-112; OAG 91-203; 97-ORD-17; 97-ORD-103. Moreover, it is not within our statutory charter to investigate in order to locate documents which the requesting party maintains exist, but which the agency states do not exist, or to otherwise resolve a dispute arising from such irreconcilable differences. However, 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 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, document what efforts were made to locate the requested records, or offer some explanation for the nonexistence of the records. See, for example, 01-ORD-246 (Education Professional Standards Board conducted adequate search for records relating to former employee when search inquiry was directed to former employee's supervisor and "those individuals in [her] 'chain of command' who could reasonably be expected to produce responsive records"); 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); compare 02-ORD-120 (record on appeal did not support school system's assertion that it conducted adequate search for public records where responsive records were located only after open records appeal was filed).
The standard for determining the adequacy of a public agency's search for public records was first articulated in 95-ORD-96. At page seven of that decision, the Attorney General observed:
[T]he Open Records Act does not require an agency to conduct "an exhaustive exhumation of records," Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D. N.Y. 1983). It is, however, incumbent on an agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, supra at 775. Thus, the agency must expend reasonable efforts to identify and locate the requested records. And, if the documents do exist, and the public agency cannot locate them, the agency's "good faith [sh]ould not be impugned unless there was some reason to believe that the supposed documents could be located without an unreasonably burdensome search." Goland v. Central Intelligence Agency, 607 F.2d 339, 353 (D.C. Cir. 1979). In assessing the adequacy of an agency 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." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).
95-ORD-96, p. 7.
The record on appeal now before us is devoid of any documentation as to the efforts made by the Office of the Citizens' Advocate to locate the requested records or to explain why no records exist; for example, that Mr. Brumagen never filed a complaint with, or otherwise contacted, the office in an effort to obtain assistance. In our view, it is incumbent on the Office of the Citizens' Advocate to promptly advise Mr. Brumagen, in writing, what steps it took to locate responsive records or to otherwise advise him why no responsive records exist. Only then will the office have fully discharged its duties under the Open Records Act as that Act is deemed to essentially relate to Chapter 171 of the Kentucky Revised Statutes and proper records management practices.
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.
Ralph Brumagen # 158652-E 115-LLittle Sandy Correctional ComplexRoute 5, Box 1000Sandy Hook, KY 41171
Ms. Joan BeckOffice of the Citizens' Advocate4th Floor, Government Center200 East Main StreetLexington, KY 40507
David Holmes, Esq.Keith Horn, Esq.Department of LawLexington-Fayette Urban County Government11th Floor, Government CenterLexington, KY 40507