Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of Lawrenceburg violated the Kentucky Open Records Act in the disposition of Allen Kays' request for specified financial and operational records, including payroll records, and the bid specifications for the painting and repair of Lawrenceburg City Hall as well as related information/records. In accordance with Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333 (2005), and prior decisions, this office affirms the City's disposition of Mr. Kays' request as to nonexistent records; public agencies do not have to "prove a negative" in order to refute a claim that records exist. Because the City has agreed to provide Mr. Kays with access to any existing records which are responsive to his request, any related issues are moot per 40 KAR 1:030, Section 6, and further consideration is unwarranted.
By letter directed to Mayor Edwinna Baker via certified mail on Friday, October 10, 2008, Mr. Kays requested the following:
. List of City of Lawrenceburg administrative level employees that have been assigned Visa and Fleet One credit cards.
. A copy of bid specifications for painting and repair on the Lawrenceburg City Hall, 100 North Main, Lawrenceburg, KY that was done in 2007.
. A copy of invitation to bid notice for the above-mentioned contract. Please list newspapers used for notification and dates published.
. List of all City of Lawrenceburg full-time and part-time employees' annual salaries and hourly wages as reflected on their payroll checks.
In addition, Mr. Kays asked "to review all receipts for merchandise or fuel purchases made with the city government credit cards at Wal-mart of Murphy Oil for the current calendar year." Mr. Kays' request was received on Wednesday, October 15, 2008, as evidenced by the record on appeal. On October 21, 2008, this office received a copy of the foregoing request as well as the certified mail receipt, which Mr. Kays provided to initiate his appeal under KRS 61.880(2)(a).
Upon receiving notification of Mr. Kays' appeal from this office, City Clerk/Administrator Robbie Hume responded on behalf of the City, advising that a response was issued to Mr. Kays on Monday, October 20, 2008, a copy of which is attached to his letter. 1 As of October 28, 2008, the date on which Mr. Hume responded to his appeal, the City had not received any further correspondence from Mr. Kays beyond his appeal. In addressing Item 1 of Mr. Kays' request, Mr. Hume advised that "Fleet One fuel cards are assigned to vehicles. All administrative personnel, as well as any employee that drives city vehicles on a regular basis, have a unique driver pin that allow them access to the fleet fuel network." According to Mr. Hume, City of Lawrenceburg Visa cards have been issued to the following city officials: Mayor Baker, City Clerk Administrator Robbie Hume, Public Works Director Larry Hazlett, and Police Chief Tommy Burris.
In denying Item 2 of the request, Mr. Hume explained that "[n]o bid specifications were set for these projects as they did not meet the bid requirement threshold. " However, Mr. Hume advised that "proposals are on file for the three projects completed: Roof repair at City Hall, Register removal and painting at City Hall, and Exterior painting of City Hall. If you wish to receive copies of these proposals please let me know." With regard to Mr. Kays' request for a copy of the "invitation to bid notice," Mr. Hume explained that "[n]o bids were accepted on the projects above as they did not meet bidding requirements; however, project proposals are available upon request." Enclosed with Mr. Hume's response was a list responsive to Item 4 of Mr. Kays' request. In response to Item 5, Mr. Hume advised that "Debbie Steele maintains financial records and will be available at 10:00 a.m. on Friday October 24th to assist you in the review of these records." Consistent with governing case law and prior decisions of this office, the City's disposition of Mr. Kays' request is affirmed.
Because the City has provided Mr. Kays with records and information which are responsive to Items 1 and 4 of his request, and has agreed to make the requested financial records available for inspection and copying, any related issues are now moot. 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has consistently held that when access to public records which are the subject of a request is initially denied but subsequently granted, the "propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. Any issues relating to records which have already been provided to Mr. Kays are moot per 40 KAR 1:030, Section 6; accordingly, this office declines to issue a decision addressing those issues. In light of this determination, the remaining question is whether the City discharged its duty in responding to Items 2 and 3 of Mr. Kays' request for nonexistent bid specifications and related information.
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. 2 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 to inspect attaches only if the records being sought 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. 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 City has 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 Mr. Kays in writing that "no bid specifications were set" for the projects in question "as they did not meet the bid requirement threshold, " nor were any bids "accepted on the projects above as they did not meet bidding requirements," the City 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 86-38. To hold otherwise would result in the City "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 affirms the City's denial of Mr. Kays' request as to Items 1-2 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 Mr. Kays 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 By issuing a written response within three business days after the request was received, the City complied with KRS 61.880(1); however, a copy of the City's response was not included with Mr. Kays' appeal because he mailed the documentation before the City's timely response was delivered.
2 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).