Request By:
Tyler Allen
Ann Stansel
J. Todd Shipp
Opinion
Opinion By: Jack Conway, 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 the disposition of the request made by Thomas M. Williams on behalf of 8664 Inc. for the "'Kennedy Interchange Area Study' also referred to as 'Agreement # 2'" as well as "any documents related to project number 102357 and/or agreement # 200706 which could be the full name of 'Agreement # 2.'" Because the Cabinet cannot produce for inspection or copying nonexistent records or those which it does not possess, and has provided a credible explanation for the lack of additional documentation, this office finds that no violation occurred. Public agencies are not required to "prove a negative" under
Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), nor does the Open Records Act empower this office to order a public agency "to create records, or declare its failure to do so a subversion of the intent of the [Act]." 96-ORD-139, p. 2.
On July 15, 2008, attorney Thomas M. Williams submitted a request for "copies of any and all traffic studies relating to Ohio River Bridges Project," including the "complete set of all studies within in [sic] the past twelve (12) months and any and all documents relating to them including correspondence. " By letter dated July 28, 2008, Records Custodian Ann Stansel responded on behalf of the Cabinet, advising Mr. Williams that a copy of the "Traffic Study done relating to the Louisville-Southern Indiana Ohio River Bridges Project, along with relative correspondence" was enclosed. Upon receipt of the responsive documents, Mr. Williams directed a "follow up" to his prior request, clarifying that he was also "seeking the 'Kennedy Interchange Area Study' also referred to as 'Agreement # 2.' This study was contracted to Wilbur Smith & Associates and referred to as the 'Kennedy Interchange Area Study (8664) Concept Traffic Review' by Wilbur Smith & Associates." In addition, Mr. Williams requested "any documents related to project number 102357 and/or agreement # 200706 which could be the full name of 'Agreement # 2.' This request includes, but is not limited to, documents initiating and terminating the study." Lastly, Mr. Williams noted that "a bill in the amount of $ 46,267.00 was submitted by Wilbur Smith & Associates to the Kentucky Transportation Cabinet on May 27, 2008." Mr. Williams requested "a copy of any checks in the payment of that bill or any related correspondence or written communication related to that bill."
In a timely written response, Ms. Stansel advised Mr. Williams that personnel in the Department of Highways had "advised that this study was not completed and the agreement ended before a final report was prepared. No report was ever assembled for the Transportation Cabinet, and upon termination of the agreement the Cabinet did not accept the raw data and agreed to pay for service only up to that date." As of August 14, 2008, the date of her written response, payment to Wilbur Smith & Associates for this service had not been "fully processed," and the Cabinet was therefore unable to provide Mr. Williams with a copy of the check; however, Ms. Stansel enclosed "a copy of Agreement # 2007006 with related attachments, as well as a copy of the invoice for services provided." 1 By letter dated September 11, 2008, Tyler Allen, Founder, initiated this appeal on behalf of 8664 Inc., noting that on both occasions 8664 "received documents from the Transportation Cabinet related to the study but unfortunately did not receive the actual study. . . . It is the contention of 8664 that data paid for or agreed to be paid for by the state should fall under the guise of open records regardless of where that data may reside." 2
Upon receiving notification of Mr. Allen's appeal from this office, Assistant General Counsel J. Todd Shipp supplemented the Cabinet's response, initially observing that Ms. Stansel "provided a final traffic study dated November 2007 to Mr. Williams along with all other requested documents" in response to his July 15 request. According to Mr. Shipp, the Cabinet has also "been fully responsive to the second request dated August 11, 2008. [The Cabinet] has provided all documents initiating and terminating the study regarding the 'Kennedy Interchange Area Study.' This is exactly what was provided to him." Mr. Shipp confirms that "[n]o final report was prepared and the consultant was paid per the invoice" that was provided. Because the study was terminated and no final report was submitted, the Cabinet "had no reason to obtain or need of [sic] any raw data that may have been developed by the consultant. Raw data is the supportive element of the final report. " The Cabinet "exercises proprietary ownership of this data" only upon delivery of a final report. Since a final report was not delivered, the Cabinet "had no use for the raw data, if any existed at the time of termination." By letter dated September 26, 2008, J.C. Stites replied on behalf of 8664, reiterating the contention of 8664 "that data, raw or final, prepared at the request of the State and paid for with taxpayer dollars, falls under" the Open Records Act. 3 In particular, 8664 requests "the data referenced in the attached February 28, 2008 e-mail from Wilbur Smith & Associates to [the Cabinet] regarding network models available on the Wilbur Smith FTP server." 4 Because the Cabinet has provided 8664 with any existing public records which are responsive to its request for documentation relating to the Kennedy Interchange Area Study, and has explained why no final report was ever prepared nor was any raw data obtained, its disposition of the request is affirmed.
In our view, the analysis contained in 07-ORD-190 is controlling on the facts presented; a copy of that decision is attached hereto and incorporated by reference. 5 As long recognized by the Attorney General, a public agency cannot afford a requester access to nonexistent records or those which the agency does not possess. Id., p. 6; 06-ORD-040. To clarify, the right of inspection attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " 6 KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. 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 a public agency discharges its duty under the Open Records Act by affirmatively indicating that no such records exist (or are in the possession of the agency) as the Cabinet has twice asserted here. However, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the records being sought after KRS 61.8715 took effect on July 15, 1994.
In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), public agencies must offer some explanation for the nonexistence of the requested records (or lack of possession, as the case may be) 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); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 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 subject investigation not in sheriff's custody because sheriff did not conduct the investigation). When, as in this case, a public agency denies that any such records exist, and the record supports rather than refutes that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83.
Having explained to 8664 that a final report was never prepared nor did the agency have a need for any underlying data, the Cabinet fully discharged its duty under the Open Records Act. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-38; 97-ORD-161; OAG 91-101; OAG 90-26; OAG 86-38. To hold otherwise would result in the Cabinet "essentially hav[ing] to prove a negative" in order to refute a claim that such records exist. 07-ORD-190, p. 7. In the absence of the requisite prima facie showing, this office must affirm the Cabinet's denial of 8664's request in accordance with
Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), and prior decisions of this office such as 07-ORD-188 and 07-ORD-190. As the Attorney General has long recognized, this office cannot "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 the Act. OAG 89-81, p. 3. In other words, to the extent 8664 is questioning the content or value of the records produced, such an issue is not justiciable in this forum; rather, "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3; 04-ORD-032; 02-ORD-89.
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 Insofar as the Cabinet provided 8664 with a copy of all responsive documents in the possession of the agency in responding to its July 15 request as framed, any related issues are moot per 40 KAR 1:030, Section 6.
2 With regard to accessibility of existing records which are not "prepared, owned, used, in the possession of, or retained by a public agency, " and therefore do not qualify as "public records" within the meaning of KRS 61.870(2), the analysis contained in 99-ORD-202 and 06-ORD-201 is controlling; a copy of each decision is attached hereto and incorporated by reference. See 08-ORD-206.
3 Contrary to Mr. Stites' implicit assertion, the Cabinet would only be obligated to produce any data that was adopted as the basis for the final action of the agency (there was no final report) even assuming that any responsive data had existed in the possession of the Cabinet at the time of 8664's request. On this issue, the analysis contained in 05-ORD-048 regarding KRS 61.878(1)(i) and (j) is controlling.
4 Upon confirming that Mr. Shipp had not received a copy of the September 26 letter on Tuesday, October 7, 2008, the undersigned counsel faxed a copy to him. Although Mr. Shipp did not issue a formal reply, he did advise, via e-mail on the same day, that a review of the "bill payment" does "not reflect payment for this collection of data." As the Cabinet looks "at studies as a whole and did not receive anything in this vein," it would not have any need for "any collected raw data. " If the Cabinet "wanted the data, which was not developed at the time of cancellation," the Cabinet "would have allowed the contract to proceed to completion" and received the data in its entirety then rather than "in any piecemeal fashion."
5 Also attached is a copy of 07-ORD-188 (In re: Kurt Lowe/Environmental and Public Protection Cabinet) upon which this office partially relied in resolving the issues presented by the subsequent appeal (In re: Kurt Lowe/Kentucky Personnel Cabinet).
6 Although 8664 is correct in assuming that "[a]mounts [actually] paid from public coffers are perhaps uniquely of public concern," and the public is generally "entitled to inspect records documenting exact amounts paid from public monies[,]" the analysis does not end there. OAG 90-30, p. 3.