Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Rockcastle County Judge-Executive Buzz Carloftis violated the Kentucky Open Records Act in denying Dr. Michael Sheliga's request for a copy "of any record(s) that indicate the total amount of people working in each of various businesses (Plastic Factory, B&H tools, PD3 etc.) found in the Rockcastle County Industrial parks (the two containing B&H tools and the plastics factory)." 1 Because the Judge-Executive did not "currently have that information," his response denying access did not violate the Act; rather, the determinative question is whether he possessed a responsive document(s) at the time of the request. 07-ORD-126, p. 3; 94-ORD-52. As the Attorney General has consistently recognized, a public agency cannot produce for inspection or copying nonexistent records or those which it does not possess. On this issue, 07-ORD-188 and 07-ORD-190 are controlling.
In denying Dr. Sheliga's request, the Judge-Executive also characterized it as "a request for information instead of a request for records." According to the Judge-Executive, "[t]hose records have never been on file in this office, although we are beginning, through the passage of the occupational license tax, to collect those numbers. The numbers we presently have, however, are not complete (the quarterly collection payments have not yet been made by all businesses)." In closing, the Judge-Executive suggested that Dr. Sheliga "contact the Rockcastle Industrial Development Authority for more accurate information." Arguing that the Judge-Executive mischaracterized his request as he indicated "a specific type of record which contains the information" requested, 2 and that the Judge-Executive cannot produce records that his office does not have, but should not be permitted to deny access entirely "because he only has some of the requested records[,]" 3 Dr. Sheliga subsequently initiated this appeal.
Upon receiving notification of Dr. Sheliga's appeal from this office, the Judge-Executive supplemented his original response, in relevant part, as follows:
As I explained in my letter to him dated October 27[], 2008, his request is, indeed, a request for information - not a request for records simply because this office does not have those records (names of employees at various businesses within our industrial parks, etc.). Further, Dr. Sheliga was operating on the assumption that this county's first quarterly occupational tax receipts were due October 1st when, in fact, they were not due until October 31st. This explains why we were unable to comply with his request. The businesses in the parks paying the occupational tax have, to date, not provided the number of employees they have, with one exception. None of this information (numbers of employees) was available to us at the time of the request for records.
We will provide the information requested by him regarding the number of employees when it is received; we will not, however, provide the amount of total wages paid by any business due to our interpretation of confidentiality. Certainly we will not provide the names of employees in each business. For such information, I simply believe that Dr. Sheliga should contact the businesses. It would then be up to them to share (or refuse) such information.
Because Dr. Sheliga requested access to records containing the number of employees working at each business only, this office declines to address whether the Judge-Executive was permitted to withhold the "amount of total wages" and the names of the employees. 4 Insofar as the Judge-Executive did not possess any documents containing the requested information as of October 20, 2008, the date of Dr. Sheliga's request, and has provided a credible explanation for his inability to produce any such documents, no violation occurred. To hold otherwise would contravene governing precedent.
More specifically, in 94-ORD-52 the Attorney General observed:
This Office has consistently recognized that the Open Records Act regulates access to public records, and not records management, or, in this instance, the purported failure of a public agency to generate a given record in a timely fashion. Our opinion must be limited to the question arising under KRS 61.870 to KRS 61.884. Simply stated, that question is: Does the public agency have the document in its possession at the time the request is submitted? OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-220; 93-ORD-51. The question of whether a document "should" exist is not cognizable under the Open Records Act.
Id., p. 3 (emphasis added); 93-ORD-55; 07-ORD-126. As previously noted, the Judge-Executive initially advised Dr. Sheliga that his office did not "currently have [the requested] information." Although the Judge-Executive seemingly contradicted himself by indicating that any numbers he "presently" had were not complete, he subsequently clarified that none of the requested information was available to his office at the time of the request; accordingly, this office must affirm his denial of the request.
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. " 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 Judge-Executive has emphatically asserted. 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 belatedly explained to Dr. Sheliga the reason that he was unable to comply as of the date when Dr. Sheliga made his request, and confirmed that none of the businesses have provided the number of employees yet, with one exception, the Judge-Executive has otherwise discharged his duty under the Open Records Act; however, the Judge-Executive should provide Dr. Sheliga with access to any responsive documentation that he now possesses upon receipt of a written request. 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 Judge-Executive "essentially hav[ing] to prove a negative" in order to refute a claim that such records exist(ed). 07-ORD-190, p. 7. In the absence of the requisite prima facie showing, this office must affirm the Judge-Executive's denial of Dr. Sheliga'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 94-ORD-52, 07-ORD-188, and 07-ORD-190.
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 Dr. Sheliga emphasized that he "would be happy to accept summative data indicating the total employees for each business"; however, if the Judge-Executive did not have the data in "summative format" he was also "willing to accept a list of names of the employees with all information about them redacted, excluding the first letter of their last name" so that he could "then count the total number of employees." Dr. Sheliga was "confident" the Judge-Executive possessed such information because he was requiring "a listing of employees and salaries to be sent to [him] for the county occupational (wage) tax."
2 This office agrees that Dr. Sheliga requested access to records instead of information; further consideration of this argument is unnecessary since no potentially responsive documents were in the possession of the Judge-Executive at the time of the request. See 07-ORD-042, a copy of which is attached hereto and incorporated by reference, for the relevant analysis.
3 Although Dr. Sheliga is correct in this assertion, the Judge-Executive has clarified on appeal that none of the requested information was in his possession as of the date when Dr. Sheliga made his request; accordingly, further consideration is unwarranted.
4 For guidance on related issues, the parties may wish to review 04-ORD-010.
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).