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 Jeffersonville violated the Kentucky Open Records Act in the disposition of Leonard Wilson's written request for various records, including the "document of the enacted ordinance or resolution authorizing the Mayor to execute bonds, notes, contracts and written obligations on behalf of the City per KRS 83A.140(4)." Although the City is not required to produce a nonexistent record, nor is the City expected to "prove a negative" in order to refute a claim that a certain record exists under the rule announced in
Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333 (2005), the inability of the City to produce the requested ordinance or resolution due to its 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. Insofar as the City failed to affirmatively indicate whether any responsive ordinance or resolution exists, the City failed to fully discharge its duty under the Open Records Act.
On December 18, 2008, Mr. Wilson requested the minutes from the City meetings held in September, October, and November, various financial and operational records, a copy of his request, and the "document of the enacted ordinance or resolution authorizing the Mayor to execute bonds, notes, contracts and written obligations on behalf of the City per KRS 83A.140(4)." In a timely written response, City Clerk/Treasurer Stacey C. Honeycutt otherwise honored Mr. Wilson's request, but advised him that "the Mayor and Commissioner[s] vote on Department Heads and the Mayor is over the day[-]to[-]day operations which gives him the authority to execute bonds, notes, contracts and written obligations for the City along with the Commissioner[s'] approval as it was always done[,]" in lieu of the requested ordinance without further explanation. By letter dated December 29, 2008, Mr. Wilson initiated this appeal. 1
Upon receiving notification of Mr. Wilson's appeal from this office, City Attorney Leah N. Hawkins responded on behalf of the City, initially noting that Mr. Wilson did not choose to appeal 08-OMD-126. It is the City's position "that this matter is barred by res judicata for his failure to file an appeal regarding this issue." In addition, a letter of explanation was issued to Mr. Wilson that was attached to his response by the City Clerk dated December 22, 2008, advising Mr. Wilson "that at the first meeting of every January, the Mayor and Commissioners, vote on department heads and the Mayor is over day-to-day operations, which gives him the authority to execute bonds, notes, contracts and written obligation[s] for the [C]ity along with the Commissioners['] approval as he has always done." Because Mr. Wilson "received a response to his request," Ms. Hawkins asserts there "was no violation of the Open Records Act. "
This office finds neither argument persuasive, insofar as Mr. Wilson's failure to appeal 08-OMD-126, a separate but related Open Meetings Decision, has no bearing on whether the City complied with the Open Records Act in responding to his written request of December 18, 2008, nor does the fact that the City issued a response necessarily mean that said response complied with KRS 61.880(1). Although the City is not required to produce a nonexistent record for inspection or copying, and the City was presumably denying the existence of the requested ordinance in explaining the Mayor's authority to execute bonds, notes, contracts, etc., albeit implicitly, both of the responses issued on behalf of the City were deficient.
As long recognized by the Attorney General, a public agency is not required to honor a request for a nonexistent record. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 99-ORD-198; 91-ORD-17; OAG 91-112; OAG 83-111. To clarify, the right of inspection attaches only after the requested record is "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. 2 In addressing the obligations of a public agency when denying access to public records for this reason, 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 (emphasis added); 04-ORD-205. Accordingly, this office has consistently recognized that a response by a public agency 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 so indicating. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3 (emphasis added); 04-ORD-046, p. 4; 03-ORD-205, p. 3. On multiple 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.
With regard to statutory obligations of a public agency when denying access due to nonexistence (or lack of possession) of the records generally, the analysis contained in 07-ORD-190 is controlling; a copy of that decision is attached hereto and incorporated by reference (along with a copy of 07-ORD-188 upon which the former decision was premised). Assuming that a public agency has made "'a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested,'" the agency cannot be said to have violated the Act in failing to produce nonexistent records. 07-ORD-023, p. 8 (citation omitted). See 05-ORD-108. If the agency has affirmatively indicated that no records exist which are responsive to a request, nothing else is required. In the absence of the requisite prima facie showing that certain records exist, a denial must be affirmed 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-190 and 07-ORD-188. To hold otherwise would result in the agency having to essentially "prove a negative" in order to refute a claim that records exist. 07-ORD-190, p. 7. Here, the City has violated KRS 61.880(1) in failing to advise whether the requested ordinance exists. 08-ORD-173; 08-ORD-020; 04-ORD-174.
In previous decisions, the Attorney General has addressed the question of how specific a public agency must be in denying the existence of a record being sought under the Open Records Act. For example, in OAG 91-101, this office held that a public agency's response is not sufficient under KRS 61.880(1) if the response fails to advise the requesting party whether the record exists. Relying upon OAG 86-38, the Attorney General construed the obligation of the agency relative to a request for a public record as follows:
KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested. If the documents exist and inspection is denied, you should list each document which the [agency] will not permit the requesting party to inspect and state how the exception to public inspection relied upon applies to the particular document withheld from inspection.
In other words: "If a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4.
In OAG 91-101, the record in dispute had been specifically identified as "minutes of a meeting of tenured faculty members conducted by Dr. Fred Knapp in November 1986." When responding, the University of Kentucky neither admitted nor denied the existence of the minutes. In our view, the agency was required to advise the requesting party whether the record existed unless it was unable to make such a determination by virtue of his failure to identify with reasonable particularity the meeting at which the minutes were taken. In 99-ORD-39, the Attorney General rejected a public agency's attempt to shield from public scrutiny the existence of an investigation into allegations of sexual harassment leveled against a high ranking official by refusing to confirm or deny that an investigation was underway or had been concluded. This office focused on the duties assigned to the Attorney General by KRS 61.880(2) , declining to give deference to the agency's sexual harassment policy, and proceeding to adjudicate the matter based upon the facts presented. In 01-ORD-59, this office focused on the duties assigned to public agencies by KRS 61.880(1), and in particular, the duty to unequivocally indicate whether a record exists, and, if such a record exists but should not be disclosed, the statutory basis for denial after examining the record. 01-ORD-38; 97-ORD-16; 96-ORD-164; OAG 91-101. At issue in that appeal was the inability of the public agency to produce for inspection a final report because no final report had been transmitted to it by the federal agency responsible for the investigation. While it was obvious in that case, as here, that the agency could not furnish that which it did not have or which did not exist, this office found that a response which did not clearly so indicate was deficient. See also 08-ORD-173; 08-ORD-020; 06-ORD-050; 05-ORD-050; compare 96-ORD-101. As repeatedly noted by this office, a public agency's "inability to produce records due to their 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. Consistent with the cited line of decisions, this office finds that the City should have advised Mr. Wilson that no record exists which is responsive to his request, assuming that is the case; nothing more, nothing less.
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.
Leonard WilsonStacey C. HoneycuttLeah N. Hawkins, PSC
Footnotes
Footnotes
1 To the extent Mr. Wilson alleges a violation of 08-OMD-126 (finding that Mayor could not be said to have violated KRS 61.810(2) in failing to approve the purchase of a lawnmower in a public meeting if the City had enacted an ordinance or resolution authorizing the Mayor to execute bonds, notes, contracts and written obligations of the City per KRS 83A.140(4)), a separate but related Open Meetings Decision issued on June 16, 2008, he misconceives our limited scope of review under the Open Records Act (determining whether public agency violated provisions of KRS 61.870 to 61.884 in responding to request for public records) .
Per 40 KAR 1:030, Section 4, this office is prohibited from reconsidering a decision rendered under the Open Records Act or the Open Meetings Act; parties may appeal to circuit court if dissatisfied as provided in KRS 61.880(5) and 61.848.
2 As long held by this office, the Open Records Act does not empower the Attorney General to order the creation of records. See 96-ORD-139; 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." Accordingly, this office has affirmed the principles articulated in OAG 78-231 and its progeny, 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. As a corollary to this proposition, the Attorney General has frequently noted that a public agency cannot afford a requester access to nonexistent records.