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 Kentucky Transportation Cabinet violated the Kentucky Open Records Act in denying the request of Courier-Journal reporter Marcus Green for "access to and copies of all documents, memos and correspondence, including cost information, generated regarding a possible arched span design for the bridge above Interstate 64 over Louisville's Great Lawn at Waterfront Park as part of the Ohio Bridges Project." In failing to initially provide any explanation of how the cited exceptions, KRS 61.878(1)(i) and (j), apply on the facts presented, the Cabinet violated KRS 61.880(1); however, a "design plan" is properly characterized as a "draft" within the meaning of KRS 61.878(1)(i) in our view. Because the Cabinet has not made a final decision regarding the design of the bridge nor does the Cabinet possess "a design plan submitted by a consultant" as of now, it necessarily follows that any existing design plan has not been adopted as the basis for any final action and, therefore, has not forfeited its preliminary status. Although the limited and internally conflicting evidence on appeal prevents a definitive resolution, the Cabinet has expressly denied having possession of either a "preliminary" or a "final" plan for the arched span design or any other kind. Likewise, the Cabinet apparently does not possess any related information or documentation regarding the arched span design; a public agency cannot produce for inspection or copying nonexistent records or those which it does not possess.
In a letter directed to Records Custodian Ann Stansel on May 1, 2007, Mr. Green submitted the aforementioned request. In a timely written response, Ann Stansel, Office of Legal Services, denied Mr. Green's request on behalf of the Cabinet, advising "that the design plan in question is still in its preliminary stages, and is not available for public inspection pursuant to KRS 61.878(1)(i) and (j)." By letter dated May 21, 2007, Jon L. Fleischaker initiated this appeal on behalf of his client, The Courier-Journal, specifically requesting a decision that "the Cabinet's response violated the Open Records Act because it failed to address all but one of the records sought by Mr. Green and because the claimed exceptions to disclosure does [sic] not apply."
More specifically, Mr. Fleischaker argues that the Cabinet's "terse response mentioned only a design plan, and neither addressed any memos [,] correspondence, cost information or other documents concerning the arched span design nor gave any further explanation of why the claimed exceptions to disclosure apply in this instance." 1 Citing the language of KRS 61.880(1), Mr. Fleischaker reiterates that the "Cabinet's response denied Mr. Green's request in its entirety but only attempted to explain the applicability of exceptions with regard to the 'design plan' -- not the memos, correspondence and cost information requested." That being said, Mr. Fleischaker asserts that "[n]either KRS 61.878(1)(i) nor (j) applies" here. Relying upon the rule of strict construction set forth at KRS 61.871, Kentucky Cabinet of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., Ky., 826 S.W.2d 324, 326 (1992) and 04-ORD-244, Mr. Fleischaker asserts that "the exceptions do not support the Cabinet's denial." According to Mr. Fleischaker, the "fact that the authorities have not made a final decision about whether to employ the arched span design or some other design does not make the design itself 'preliminary' as that term is used in KRS 61.878(1). See 04-ORD-125." 2 The design plan "is not a document that is subject to internal revision by the Cabinet; it is a final document submitted to the Cabinet." Because the design plan is not preliminary, neither exception applies in the Courier's view.
In addition, "there is no exception to disclosure under the Open Records Act for documents simply because of their being preliminary." To the contrary, KRS 61.878(1)(i) and (j) are "limited to specific categories of documents." Regardless of its "alleged 'preliminary' nature, because the design plan itself cannot accurately be characterized as a draft, a note, or correspondence with private individuals, the Cabinet's invocation of KRS 61.878(1)(i) was in error." Likewise, KRS 61.878(1)(j) does not apply because the design plan is not a memorandum or a recommendation containing opinions or formulations of policy. Based upon the foregoing, The Courier-Journal asks this office to find that the Cabinet violated the Act in denying Mr. Green's request.
Upon receiving notification of the Courier's appeal from this office, J. Todd Shipp, Assistant General Counsel, responded on behalf of the Cabinet. According to Mr. Shipp, the Cabinet "does not have in its possession" a preliminary design plan or a final design plan. As of June 1, 2007, the date of his response, "the Section One (1) Design Consultants Kentucky Transportation Associates made up of, QK4, American Consulting Engineers, Palmer Engineering and WMB Engineers ha[d] not submitted to this Cabinet any final design plans for any bridge style much less an arched span design." 3 However, the Cabinet "has in its possession, and has presented, some conceptual drawings of the various bridge styles being contemplated at public meetings." As far as "a design plan submitted by a consultant, we do not possess those and, without question, they are in a preliminary design stage in the hands of a consultant. This is the very essence of KRS 61.878(1)(i) and (j)." To clarify, the Cabinet "can simply state it does not exist. KYTC does not possess anything that reflects on an arched span design including cost information. The only preliminary cost information we have, has been through an in-house meeting with the above-listed consultants and in a subsequent meeting with the Waterfront Development Corporation." In his view, these "are preliminary cost estimates, not final estimates for purposes of letting a construction contract." To summarize, the "bottom line is very clear" insofar as the Cabinet does not possess "a preliminary plan or final plan involving any bridge design, not just an arched span. The design plan has not been presented nor has one been done"; likewise, the Cabinet "does not possess memoranda or other documents regarding an arched span design, including its cost information."
Although the Cabinet initially failed to comply with KRS 61.880(1), and its response on appeal is internally inconsistent from our perspective, 4 the Cabinet has expressly denied the existence of an "arched span design" as well as possession of any related information or documentation; this office cannot find a violation as requested by the Courier in the absence of evidence to the contrary nor would the design plan itself, a "draft," be open for inspection unless eventually adopted as the basis for the final action of the Cabinet.
As a public agency, the Cabinet is obligated to comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access to the records generally speaking. 5 More specifically, KRS 61.880(1) dictates the procedure that a public agency must follow in responding to requests submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
(Emphasis added). In construing the mandatory language of this provision, the Kentucky Court of Appeals observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-208; 04-ORD-163; 04-ORD-106.
Noticeably absent from the Cabinet's is the requisite brief explanation of how the exception(s) applies. A public agency such as the Cabinet must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof, withheld per KRS 61.880(1) in order to satisfy its burden of proof. 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As repeatedly recognized by the Attorney General:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), we believe that [a public agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106; 03-ORD-213. In the same vein, this office has also observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2. As correctly observed by Mr. Fleischaker, the Cabinet not only failed to explain how the cited exceptions apply to a design plan but also failed to address whether any documents, memos or correspondence, including cost information, exist and explain how the cited exceptions apply with regard to same. In short, the initial response of the Cabinet does not contain the specificity envisioned by KRS 61.880(1). From a procedural standpoint, the Cabinet violated the Open Records Act in failing to comply with the mandatory terms of this provision. In responding to future requests, the Cabinet should be guided by the longstanding principle that the procedural requirements of the Open Records 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; 04-ORD-181; 04-ORD-163; 04-ORD-080; 02-ORD-187.
At issue in 04-ORD-125, upon which the Courier partially relies in arguing that lack of a final decision by the Cabinet regarding which design to employ does not render the plan itself "preliminary" within the meaning of KRS 61.878(1), were "'hard copies of final presentations'" made by six advertising agencies in response to a "'Request for Proposal'" issued by the Commerce Cabinet in conjunction with other state agencies "'to consolidate these services across Cabinet lines'" and develop a "'brand'" for the Commonwealth. Id., p. 1. "Final presentation" included the presentation itself, "'copies of creative materials, handouts, exhibits, and other supporting material'" utilized by the agencies. Id., p. 2. Because the Commerce Cabinet's interpretation of KRS 61.878(1)(i) was based on a faulty premise, namely, that the "'Vendor Presentations'" could properly be characterized as preliminary drafts, notes, or correspondence with private individuals, it was the decision of this office that KRS 61.878(1)(i) could not properly be invoked. Id., p. 5. Although the legal analysis employed by this office in 04-ORD-125, a copy of which is attached hereto and incorporated by reference, is equally applicable, the instant appeal is distinguishable insofar as the design plan at issue is a draft within the meaning of KRS 61.878(1)(i); a contrary result necessarily follows.
In the absence of a statutory definition, this office "must construe all words and phrases according to the common and approved uses of language" pursuant to KRS 446.080(4). Claude D. Fannin Wholesale Co. v. Thacker, Ky. App., 661 S.W.2d 477, 480 (1983); see also Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997). 6 As consistently recognized by this office, a "draft" is defined as "a preliminary version of a plan, document, or picture." The American Heritage Dictionary 495 (4th ed. 2002)(emphasis added). See 97-ORD-183, p. 4 ("preliminary outline, plan, or version"). In our view, a "design plan" is properly characterized as a "draft" in the "common and approved" sense of the word. Unlike the application materials at issue in 06-ORD-135 (regarding "'approval of a plan for reconfiguration of the intersection and northbound entrance ramp of I-65 at the Outer Loop in Jefferson County'") and the final presentation materials at issue in 04-ORD-125, for instance, the design plan does "represent a tentative version, sketch, or outline of a formal and final written product." 06-ORD-135, p. 10. Because the record clearly reflects that no final decision has been made nor has the process even reached the stage when design plans are submitted by the consultants, logic dictates that any such plan has not forfeited its preliminary status. Compare 04-ORD-193 and 04-ORD-083.
That being said, this office has long recognized that a public agency is not required to honor a request for nonexistent records or those which it does not possess. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 99-ORD-198; 98-ORD-200; 91-ORD-17; OAG 91-112; OAG 87-54; OAG 83-111. In other words, the Cabinet cannot produce for inspection or copying that which it does not have. 02-ORD-118, p. 3. To clarify, the right of inspection 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. 7 In addressing the obligations of a public agency when denying access to public records on this basis, the Attorney General has observed:
[A]n 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. 01-ORD-38, p. 9 [other citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient.
02-ORD-144, p. 3; 04-ORD-205.
Accordingly, this office has repeatedly 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 so indicating as the Cabinet did here, albeit belatedly. 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. When a public agency denies the existence of records, it is "not incumbent on this office to conduct an investigation in order to locate the 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-205; 02-ORD-144; 94-ORD-140. To the contrary, the role of the Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(1); this office is without authority to deviate from that mandate.
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 its burden of proof under KRS 61.880(2)(c), a public agency must offer some explanation for the nonexistence of the requested records 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); 03-ORD-059 (radio run tapes were erased and reused in a manner consistent with applicable records retention schedule and were therefore not available for review); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 98-ORD-47 (audit not in University's custody because it was never reduced to writing); 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 investigation not in sheriff's custody because sheriff did not conduct the investigation). Under circumstances like those presented, further inquiry is not warranted in the absence of contrary evidence. As in the cited decisions, the record is devoid of evidence to raise the issue of good faith; the position of the Cabinet is credible insofar as no plans of any kind have been submitted yet and, therefore, related information or documentation has not been generated.
Because the Cabinet 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 Cabinet discharged its obligations under the Act, regardless of whether the search yielded any results, by notifying Mr. Green that no records exist and explaining why. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-38; 97-ORD-161; OAG 91-101; OAG 90-26; OAG 86-38.
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 As a threshold matter, this office assumes that Mr. Green's request for all documents concerning "a possible arched span design" did not encompass other possible designs. In other words, our conclusion is premised on the assumption that the Cabinet did not interpret Mr. Green's request more narrowly than he intended by focusing exclusively upon records concerning an arched span design since the Courier does not challenge the Cabinet's denial on that basis. In any event, the Cabinet denies having possession of any design.
2 Our holding today does not diminish the validity of this reasoning; the facts presented are merely distinguishable. If or when the Cabinet reaches a different stage in the process and possesses records which are responsive, application of this precedent could result in a different outcome.
3 Noticeably absent from the record is any explanation of the underlying process or context.
4 For instance, the Cabinet initially denies having possession of any plans and then affirmatively indicates that such records do not currently exist, presumably referring exclusively to plans that would be submitted by consultants. In addition, the Cabinet simultaneously acknowledges the existence and possession of "conceptual drawings" and emphatically denies the existence of any design plan submitted by a consultant; however, the record is unclear regarding if or how one differs from the other. Likewise, the Cabinet expressly denies having possession of "anything that reflects" on the arched span design, including cost information, yet subsequently concedes having "preliminary cost information [presumably of a general nature or concerning other designs]," thereby confusing the issue.
5 See 02-ORD-132, p. 7, citing Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994).
6 A dictionary may be consulted to ascertain the "common and approved" meaning of a term when that is the case. See Young v. Commonwealth, Ky., 968 S.W.2d 670, 672 (1998).
7 As consistently emphasized by this office, the Open Records Act does not empower the Attorney General to order the creation of records. See 96-ORD-139; OAG 89-66; OAG 89-32; OAG 83-111; OAG 80-308; OAG 79-547; OAG 78-231. In 95-ORD-48, the Attorney General reaffirmed this longstanding principle in light of recent amendments to the Open Records Act, expressly declining "the invitation to invade the prerogative of public agencies in determining, 'in accordance with standards, rules and regulations prescribed by the Department for Libraries and Archives,' what records they must create. KRS 171.640." Thus, our office has affirmed the principles articulated in OAG 78-231 and its progeny relative to records creation, concluding that the Attorney General "cannot order an agency to create records, or declare its failure to do so a subversion of the intent of the Open Records Act. " 96-ORD-139, p. 2. See 98-ORD-5. As a corollary to this proposition, the Attorney General has often noted that a public agency cannot afford a requester access to nonexistent records.