Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal 1 is whether the Environmental and Public Protection Cabinet violated the Open Records Act in the disposition of Kurt Lowe's June 18 and June 26, 2007, requests for records. For the reasons that follow, we find that in the absence of a prima facie showing by Mr. Lowe that EPPC maintains specific records that have not already been disclosed to him, EPPC properly disposed of his open records requests by affording him access to all records within its custody that were responsive to those requests and thereafter notifying him that it maintains no additional responsive records.
On June 18, Mr. Lowe requested access to:
1) The itemized detailed receipt for all services rendered to the Environmental and Public Protection Cabinet Inspector General by forensic document examiner Katherine Voelker Shroenberger, 9209 Glover Lane, Louisville, Ky. 40242 for the forensic handwriting examination referenced in her final report furnished to the EPPC-01G Dale Fadley, dated February 15, 2007. These records were used in the termination of Sara Wendel, KHRA employee.
2) The record(s) that show the process used to locate and retain the services of the aforementioned forensics examiner (re: bids, request for proposals, open bidding, closed bidding, sole source, lowest responsive bidder . . . .)
On June 26, 2007, Mr. Lowe submitted an inquiry concerning his June 18 request and a June 13 request, a copy of which he did not provide to this office. 2 With reference to the June 18 request, he observed:
The response claimed that numbers two and three "no records exist." On the contrary, according to the Finance Cabinet and Auditor of Public Accounts offices, record(s) do exist . . . . I suspect that it is the nature of the request that prompted this response that falls short of the KORA. It is suspected that there may be fraud afoot with not only the procurement of the examiner in question, but in the misuse of tax revenue and the suspected fraud perpetrated by the examiner and those with motives that procured the examiner. This is "partial" speculation at this point; however, the evidence gathering is incomplete "at this time." I am attempting to obtain the procurement method and guideline that is utilized and was utilized to retain the services for "a" or "the" specified forensics examiner by the EPPC-0IG "and" the state record (i.e. KRS, KAR . . .) that is the procurement guideline "was" and "is" used by the EPPC-0IG in procuring outside services, such as "a" forensics examiners and Kathryn Voelker Schoenberger, in this instance.
On August 20, 2007, some ten days after his open records appeal reached this office, Mr. Lowe communicated additional concerns relative to EPPC's disposition of an open records request submitted on August 8, 2007. 3 Because this request was not included in his original appeal, and EPPC was denied the opportunity to respond to the issues raised per 40 KAR 1:030 Section 2, we are precluded from considering these issues. Our narrow focus, therefore, is confined to EPPC's disposition of Mr. Lowe's June 18 request.
EPPC's June 21, 2007, response to the June 18 request succinctly states:
This is the response of the Environmental and Public Protection Cabinet to your 3-part open records request 4 dated June 18, 2007. Because the Office of Legal Services is not the custodian of records generated by the Office of Inspector General (OIG), your request was forwarded to this office for response.
OIG has located one record meeting the description in subparagraph 1 of your request. A copy of that one-page document is enclosed herein.
No records exist that meet the description in subparagraphs 2 and 3 of your request.
In supplemental correspondence directed to this office following commencement of Mr. Lowe's appeal, EPPC Staff Attorney Barbara M. Pauley amplified on EPPC's position. She emphasized that the agency issued timely written responses to each of Mr. Lowe's requests, including the June 18 request that is the subject of this appeal, and that "[t]o to the extent the June 18 request asks EPPC to create records specifically for [him], or to provide records that do not exist, neither is proper under the Kentucky Open Records Act. " In support, Ms. Pauley cited 04-ORD-198 and 02-ORD-213. In general, we agree.
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, 5 pertaining to management of public records, the Act regulates access to public records that have been prepared, owned, used, in the possession of or retained by a public agency. 6 Our decisions in open records disputes are therefore generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record, and, if so, whether the record is subject to public inspection. Thus, in an early opinion the Attorney General observed:
There are two legal thresholds which must be crossed by a person seeking to compel access to documents under the Open Records Law, KRS 61.870 to 61.884; (1) the custodian of the records must be a "public agency" as defined in KRS 61.870(1), and (2) the documents to be inspected must be "public records" as defined in subsection (2) of the same statute. Unless and until those thresholds are crossed it is not necessary to consider the provisions of the law pertaining to exemptions (KRS 61.878) or pertaining to an unreasonable burden in producing voluminous public records (KRS 61.872(6)).
OAG 82-27, p. 3 (overruled on other grounds in OAG 82-277). Simply put, Kentucky's Open Records Act applies to records that are already in existence, and that are in the possession or control of the public agency to which the request is directed. See, e.g., 95-ORD-125 (Louisville Firefighters Pension Fund properly denied request for confirmation tickets reflecting investment transactions made on its behalf by a private corporation with which the Fund had contracted to manage its assets); 97-ORD-15 (University of Kentucky was not obligated to retrieve a fee agreement between a University employee and a private attorney from the attorney in whose custody the agreement resided); 98-ORD-90 (correctional facility was not obligated to contact a toothpaste manufacturer to obtain a copy of the material safety data sheet for toothpaste used at the facility in order to satisfy an inmate's open records request).
EPPC asserts that it has provided Mr. Lowe with a copy of the only responsive record it maintains and finds itself in the position of "proving a negative" relative to the nonexistence of any other responsive records. Addressing this dilemma, in
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), the Kentucky Supreme 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 . . . where the agency claims that the records do not exist.
. . .
[T]he best way to uphold [the basic policy of the Act, recognizing "that free and open examination of records is in the public interest," when an agency denies the existence of the requested records] is to ensure that the complaining party has an opportunity to disprove a public agency's denial of the existence of records . . . 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.
Nevertheless, the Court continued:
[T]he 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.
On this basis, the Court concluded "that before a complaining party is entitled to such a hearing [to disprove the agency's denial of the existence of the requested records], he or she must make a prima facie 7 showing that such records do exist."
In support of his claim that EPPC must maintain additional responsive records, Mr. Lowe makes the unsubstantiated claim that the Finance Cabinet and Auditor of Public Accounts state that records do exist. He acknowledges that his position is postulated, at least in part, on speculation. He makes no actual showing, prima facie or otherwise, that additional responsive records in fact exist. In the absence of such a showing, we are obligated under the rule announced in Bowling v. Lexington-Fayette Urban County Government, above, to affirm EPPC's position. 8 Accord, 06-ORD-042; 06-ORD-223; 07-ORD-045; 07-ORD-085.
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 Mr. Lowe's appeal comes to us in an unusual procedural posture, having been referred to the Attorney General by the Auditor of Public Accounts. Given the substance of the materials submitted, we elected to treat the matter referred as an open records appeal, and Mr. Lowe, who was promptly notified of the decision, voiced no objection.
2 Pursuant to 40 KAR 1:030 Section 1, the Attorney General is foreclosed from considering that portion of Mr. Lowe's appeal that relates to his June 13 request. That regulation provides:
The Attorney General shall not consider a complaint that fails to conform to . . . KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's denial, if the agency provided a denial.
We therefore make no findings on any issue arising from EPPC's disposition of Mr. Lowe's June 13 request.
3 Mr. Lowe again referenced, but did not enclose, a copy of a July 31 request. Per 40 KAR 1:030 Section 1, we are foreclosed from considering any issues relating to EPPC's disposition of that request owing to his failure to comply with KRS 61.880(2). See note 1, above.
4 We note that the copy of the June 18 request that Mr. Lowe submitted to this office does not mirror the copy of the June 18 request that EPPC submitted to this office. The copy which Mr. Lowe submitted contains only two subparts, while the copy which EPPC submitted, and to which it clearly responded on June 21, contains three subparts. No explanation is offered for this discrepancy.
5 See, KRS 61.8715.
6 See, KRS 61.870(2).
7 Black's Law Dictionary, 1071 (5th ed. 1979), defines the term prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."
8 This is not the appropriate forum for review of Mr. Lowe's claim that responsive records are being willfully concealed. KRS 61.990(2)(a) establishes a penalty for public officials who willfully conceal or destroy public records with the intent to violate the Open Records Act. Evidence of willful concealment or destruction of public records, if it exists, must be presented to the local prosecutorial authorities. The Attorney General is not empowered to render a decision on this question or any other non-open records related questions.