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 Airport Board violated the Open Records Act in the disposition of a series of requests submitted by L. Richard Musat and the law firm of Treece, Alfrey, Musat and Bosworth, P.C. For the reasons that follow, we find that the record on appeal contains insufficient proof to support Mr. Musat's claim of an inordinate delay in affording him timely access to the requested records. With the single exception of the omission of the date on which existing responsive records would be produced, per KRS 61.872(5), we find no error in the Board's disposition of Mr. Musat's request or the timeliness of delivery of responsive records.
In his September 20, 2006, November 21, 2006, and November 28, 2006, requests, Mr. Musat identified thirty categories of records directly or indirectly related to the crash of Comair 5191. The Board promptly responded to the first of these requests by advising Mr. Musat that the requested records were either in active use, in storage, or not readily available, indicating that it had initiated a search for the records, and agreeing to make responsive records available for his review within ten days. On September 29, the Board notified Mr. Musat that his request would require an "extensive search," but that once responsive records had been located and reviewed he would be notified by supplemental response. Contemporaneously, the Board advised Mr. Musat that some records had been located and were available for inspection.
In response to his second request, the Board notified Mr. Musat that the records identified in the request were in active use, in storage, or not readily available, but that it would again undertake an "extensive search." Without identifying a date on which the records would be available, the Board indicated that he would be notified "by supplemental response." With reference to his first request, the Board advised Mr. Musat that additional records had been located, and were available for inspection, but that certain records had been withheld under statutorily recognized exceptions to the Open Records Act.
On December 1, 2006, records responsive to Mr. Musat's first request were transmitted to him with an accompanying explanation relative to certain of those requests. One month later, the Board transmitted several boxes of records to Mr. Musat in satisfaction of his three requests, advising him that "[t]hese records, together with those previously provided to you, constitute all of the records the Airport Board had identified to date, after careful review, that are responsive to the thirty separate categories of records you requested, excepting those records identified in previous responses as exempt from the general disclosure obligations of the Kentucky open Records Act."
Acknowledging that the Board "has responded fully to some requests," Mr. Musat nevertheless initiated this appeal on February 8, 2007, asserting that "for certain requests, the Airport Board has provided neither access to the documents nor an explanation as to why access will not be provided." Mr. Musat proceeded to identify eleven categories of records to which he had not been afforded full and timely access or a proper explanation for continued delay.
The Board amplified on its position by letter dated February 16, 2007. Citing past decisions of this office for the proposition that "it is incumbent on the agency to conduct a search for responsive records, to produce for inspection all nonexempt records that search yields, and if the search yields no results, to affirmatively so advise the requester, " the Board maintained that it discharged these duties in its January 2 letter. Citing 04-ORD-048, inter alia. Reiterating that the records produced "constituted all of the records identified in its search," the Board reasoned that it "cannot produce records that do not exist, and the Open Records Act does not require an agency to create records to satisfy a request." Citing 04-ORD-198 and 02-ORD-112.
To facilitate our review of the issue on appeal, this office requested additional documentation from the Board, pursuant to KRS 61.880(2)(c), by letter dated February 22, 2007. With reference to the eleven Board responses Mr. Musat criticized, and in response to our inquiry, Board attorney W. Thomas Halbleib, Jr., explained:
Request No. 5. Mr. Musat asked for copies of all "paving and electrical, and lighting construction contracts, subcontracts, or agreements for the work in the vicinity of the thresholds . . . of runways 22 and 26." The Airport Board provided Mr. Musat with copies of all public records it maintains that are responsive to this request. The contracts Mr. Musat admits receiving are the only public records maintained by the Airport Board which are responsive to his request. Mr. Musat's appeal says that other documents produced by the Airport Board refer to other contractors, although he does not name the "other contractors and sub-contractors" to which his appeal refers. These may be references to contractors not involved in paving, electrical and lighting construction contracts. They may be references to sub-contractors who were involved in this work, but whose contracts were not with, and copies of which are not maintained by, the Airport Board. If the former, the records were not provided because they were not requested. If the latter, the records were not provided because the Airport Board does not maintain them.
Requests No. 8, 11, 13, 17, 18, and Supplemental Request No. 1. The Airport Board believed that public records responsive to each of these requests were among the thousands of pages of records that it previously delivered to Mr. Musat. I suspect that Mr. Musat has failed to properly identify at least some of what has been provided to him. For example, he asked for a copy of the "Blue Grass Airport Operations Manual." [Request No. 17.] No public records by that name exist. I believe he is using outdated nomenclature, as the Airport Board does maintain, and it did send him a copy of the "Blue Grass Airport Certification Manual," which I suspect is what he wanted. I also recognize that, among the thousands of pages of records provided, errors in reproduction may have occurred. For example, Mr. Musat complains that we produced a copy of an insurance contract for 2005, instead of the 2006 policy he requested. It seems to me apparent that the wrong contract was copied; the Airport Board clearly did not intend to send the 2005 policy, which he did not request. [W]e have today sent him a letter, a copy of which is attached, enclosing a list of all records responsive to these requests we believed to have been previously sent him. The letter offers to make available to him additional sets of copies of any of them.
Request No. 25. Mr. Musat requests a copy of FAA and owner design reviews and design team responses of the contract documents for all airfield construction contracts underway on August 27, 2006. The Airport Board maintains no records responsive to this request.
Supplemental Requests No. 2 and 3. Mr. Musat requests copies of insurance reviews, audit analyses or comments by any broker, agent or organization discussing liability insurance for the Airport Board, as well as any documents to, from or concerning Deborah Zufall. The Airport Board maintains no records responsive to this request. Some time ago, Mr. Musat said Ms. Zufall's internet resume indicates that she performed some sort of insurance review work for the Airport Board. Representatives of the Airport Board indicate that, although they have worked with Ms. Zufall's employer, Newton & Associates, on other matters, they have never worked with Ms. Zufall and maintain no records responsive to this request.
Supplemental Request No. 4. Mr. Musat requests liability insurance policies for construction contractors working at the Airport during 2005, 2006, and later years. He acknowledges receiving certificates of insurance for five contractors. The Airport Board does not maintain copies of insurance contracts for its contractors. It does maintain, and did make available to Mr. Musat, copies of certificates of insurance. The records Mr. Musat has acknowledged receiving are all of the public records maintained by Airport Board that are responsive to his request. He notes that other documents produced by the Airport Board indicate the involvement of other contractors and that certain Bid Package Instructions indicate that each successfully bidding contractor must provide a certificate of insurance. Mr. Musat identifies neither the other contractors nor the Bid Package to which he refers. Airport Board staff have confirmed that the records made available to Mr. Musat are all of those maintained by the Airport Board that are responsive.
Mr. Halbleib thrice noted that he had extended an offer to Mr. Musat, through local counsel, Ron Green, to discuss the identity of contractors or subcontractors whose records remain in dispute and to clarify how records already produced are, in fact, responsive to his requests. To date, Mr. Musat has not accepted Mr. Halbleib's offer. 1
Having reviewed the record on appeal, we find that with the exception of the violation of KRS 61.872(5), based on the Board's failure to notify Mr. Musat of the "earliest date on which the public record[s] will be available," the Board complied with the Open Records Act in all remaining particulars. That record demonstrates that the Board has produced voluminous documents in a timely fashion, given the broad scope of Mr. Musat's request, 2 and asserted that no additional responsive records exist. When an agency's denial of an open records request is postulated on the nonexistence of records, the Attorney General has traditionally taken the position that the denial does not constitute a violation of the Open Records Act insofar as the agency cannot afford the requester access to a record or records that it does not possess. See, e.g., OAG 83-111; OAG 87-112; OAG 91-112; 97-ORD-17; 01-ORD-11; 02-ORD-120. Moreover, where some, but not all, of the requested records are disclosed, this office has generally declined to attempt to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 4 (emphasis added). We see no reason to depart from that position in the instant appeal.
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 requirements of [KRS 171.410 to 171.740, dealing with the management of public records, and of KRS 11.501 to 11.517, 45.253, 171.420, 186A.040, 186A.285, and KRS 194A.102, dealing with the coordination of strategic planning for computerized information systems in state government]." 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. Under the mandate of this statute and KRS 61.880(2)(c), the Attorney General requested that a Board substantiate its denial by demonstrating what efforts were made to locate responsive records. The Board responded as follows:
In preparation of its responses to Mr. Musat's requests, the Airport Board provided listings of the dozens of categories of public records sought to its Executive Director, all Departmental Directors, its Chief of Public Safety, certain Managers, and other staff members believed to maintain public records responsive to the requests. Each of these persons was directed to search their files, both paper and electronic, to identify any public records that might be responsive to one or more of Mr. Musat's requests. In certain instances, counsel to the Airport Board met with staff members to assist with their compliance with the requests If no responsive records were identified, appropriate staff members were re-contacted to confirm that the Airport Board did not maintain responsive records or otherwise explain the situation. The public records identified by staff members were then consolidated and reviewed by counsel to determine whether the records were responsive and whether any of the records should be redacted or withheld under one of the exceptions to the Act's general disclosure obligation.
All nonexempt responsive records were then forwarded to Mr. Musat.
Mr. Musat produces no specific evidence that the Board withheld records that are responsive to his requests, and the Board has satisfactorily addressed any alleged deficiencies in its disposition of these requests. "In assessing the adequacy of an agency's 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.'" 95-ORD-96, p. 7, citing
Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977). Based on the number of records produced, it is apparent that the Board "made a good faith effort to conduct a search using methods that can reasonably be expected to produce the records requested." 95-ORD-96, p. 7. Ultimately, that search did not yield all of the records Mr. Musat believes to exist. Our analysis, however, turns not on whether the fruits of the agencies' searches meet the requester's expectations, but whether they made a good faith effort to conduct such a search, and can then say, as unequivocally as the nonspecificity of the requests permit, 3 that no additional responsive records exist. In the absence of evidence calling into question the Board's good faith, we conclude that the Open Records Act requires nothing more. 4 Consistent with our statutory duty to enforce the rights and obligations of the parties in an open records dispute, we do not assign improper motives to Mr. Musat or the Board. In the end, "we assume a modicum of good faith from [all] parties: from the requester in formulating his request, and from the [agency] in providing the records which satisfy the request." 93-ORD-15, p. 6.
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.
Richard L. MusatTreece, Alfrey, Musat & Bosworth, PC999 18th Street, Suite 1600Denver, CO 80202
Michael GobbExecutive DirectorLexington-Fayette Urban County Airport BoardBluegrass Airport4000 Terminal Drive, Suite 206Lexington, KY 40510
W. Thomas Halbleib, Jr.Stites & Harbison, PLLC400 West Market Street, Suite 1800Louisville, KY 40202-3352
Michael E. FrankeStites & Harbison PLLC400 West Market Street, Suite 1800Louisville, KY 40202-3352
Footnotes
Footnotes
1 Upon closer inspection of Mr. Musat's letter of appeal, we concur with the Board in its view that he does not contest the nondisclosure of records under statutorily recognized exceptions, but focuses instead on the Board's alleged failure to afford him timely access to nonexempt records and to provide "an explanation as to why access will not be provided." Mr. Musat may, of course, challenge the Board's partial denial of his requests in a separate appeal, but, having not done so in the instant appeal, we will not address these issues.
2 This office has declared that "a determination of what is a 'reasonable time' for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records." 94-ORD-75, p. 4. Mr. Musat submitted his first request on September 20, 2006, and his last request on November 28, 2006. The Board produced all responsive records in its possession on or before January 2, 2007. In view of the broad scope of his request, the number of documents implicated, and the associated difficulties in retrieval, we do not believe that a delay of this duration was unreasonable.
3 "To require an unequivocal denial of a nonspecific request for records," this office has often stated, "is to impose a burden on the public agency which no custodian of records, or individual acting under his authority, can practically discharge." See, e.g., 96-ORD-101; 01-ORD-131.
4 In a recent opinion, the Kentucky Supreme Court analyzed the respective obligations of the parties in the event of an appeal arising from a denial based on the nonexistence of responsive records. The Court observed:
The Open Records Act is silent as to the procedure to be followed when a requester seeks to enforce the Act over a public agency's denial of the record's existence. The Act contemplates that an agency will deny an open records request when it believes that the requested records are exempt, but it does not envision a situation, as here, where the agency claims that the records do not exist. See KRS 61.880(1) ("An agency response denying ? inspection of any record shall include a statement of the specific exemption authorizing the withholding of the record ...."). Similarly, the Act's enforcement provisions assume that the parties will be litigating the viability of a claimed exemption over existing records, not the very existence of the records. See KRS 61.882(3) ("The court ? may view the records in controversy in camera before reaching a decision.").
. . .
The General Assembly has expressly declared the "basic policy" of the Open Records Act to be "that free and open examination of records is in the public interest ...."KRS 61.871. When faced with the present situation, the best way to uphold this policy is to ensure that the complaining party has an opportunity to disprove a public agency's denial of the existence of records. The allowance of an opportunity for such a hearing is also in accord with the Act's interrelation with the various statutes governing orderly maintenance and management of public records. KRS 61.8715. To hold otherwise could remove accountability from the open records process, allowing public agencies to avoid judicial review by denying a record's existence altogether rather than claiming a statutory exemption. Statutes must not be construed in a way that they become meaningless or ineffectual. Commonwealth v. Phon, 17 S.W.3d 106, 108 (Ky. 2000); Allen v. McClendon, 967 S.W.2d 1,3 (Ky. 1998). At the same time, the General Assembly has also evidenced a concern that public agencies not be unreasonably burdened and that essential functions not be disrupted by open records requests. KRS 61.872(6). The unfettered possibility of fishing expeditions for hoped-for but nonexistent records would place an undue burden on public agencies. In order to refute a complaining party's claims to a nonexistent record, the agency would essentially have to prove a negative, presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives. Therefore, we hold that before a complaining party is entitled to such a hearing, he or she must make a prima facie showing that such records do exist.
Bowling v. Lexington Fayette Urban County Government, Ky., 172 S.W.3d 333, 340, 341 (2005) (emphasis added).