Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Governor violated the Open Records Act in the disposition of Richard M. Loghry's November 21, 2008, request, and two subsequent requests, dated December 8, 2008, 1 and December 31, 2008, 2 for records relating to the "Kentucky Government Efficiency Study that Targets Approximately $ 180 Million in Annual Savings." For the reasons that follow, we find that the Office of the Governor violated KRS 61.880(1) when it failed to respond to each of these requests.
In its belated response, dated January 29, 2009, the Governor's Office provided Mr. Loghry with a copy of the Spend Analysis Report, Part 1, Part 2, and Part 3 issued on August 29, 2008, and a CD containing more than 7,000 suggestions provided by state employees and members of the public, but advised that no additional responsive records reside in the Office of the Governor. The Office acknowledged that no "efficiency study" was conducted, and, therefore, no records relating to such a study exist.
Shortly thereafter, Mr. Loghry submitted a written reply to the belated response issued by the Office of the Governor in which he questioned that response. He observed:
Governor Beshear made public comments that he would raise taxes as a very last resort. He also indicated he directed an efficiency study that targeted approximately $ 180 million in annual savings. The response indicated that the records were more properly characterized and related to a "Spend Analysis Report" issued August 29, 2008.
Noting that it was statutorily incumbent on the Governor's Office to identify the custodian of any agency with additional responsive public records per KRS 61.872(4), and that "an initiative of this size would warrant plans, assignments, updates, metrics, etc.," Mr. Loghry identified seven records categories that "would exist to support this initiative, " none of which were addressed in the response of the Office of the Governor.
By letter dated March 5, 2009, the Governor's Office responded to Mr. Loghry's supplemental comments addressing, for the first time, the failure to respond to any of his three written requests. The Governor's Office attempted to explain its failure to respond in a timely manner.
The failure of the Office of the Governor to respond to Mr. Loghry's requests in a proper and timely fashion constituted a violation of KRS 61.880(1). That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
The Office of the Governor has acknowledged its failure to respond to the request in a timely fashion and has failed to provide a legitimate reason for its failure to conform its conduct to the express requirements of the Open Records Act. Public agency inaction is not a viable option under the Open Records Act, and the press of other business is simply no excuse for neglect of a statutory duty. See, e.g., 00-ORD-117 (recognizing that "discharge of these duties is required by law, and is as much a legal obligation of a public agency as the "provi[sion of] services to the public").
Having determined that the Governor's Office violated KRS 61.880(1) by failing to respond to Mr. Loghry's requests, we can afford him little in the way of additional relief under the Act. The intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, 3 pertaining to management of public records. Nevertheless, the Act regulates access to public records that have been prepared, owned, used, in the possession of or retained by a public agency. 4 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.
The Office of the Governor has twice declared that it has provided Mr. Loghry with all existing records that are responsive to his request. It finds itself in the untenable position of "proving a negative" relative to the nonexistence of additional 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 5 showing that such records do exist."
Mr. Loghry postulates the existence of additional records based on the scope of the "efficiency study" initiative, but offers no direct supporting evidence of the records' existence. Conversely, the Governor's Office concedes that no "efficiency study" was conducted, but that all records relating to its functional equivalent, the Spend Analysis Report, have been released to Mr. Loghry. This accounts for the nonexistence of records relating to an "efficiency study." In the absence of a prima facie showing that additional records exist, we are obliged under the rule announced in Bowling, above, to affirm the ultimate disposition of Mr. Loghry's requests by the Office of the Governor. Accord, 06-ORD-223.
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.
Richard M. LoghryMichael Alexander
Footnotes
Footnotes
1 Transmitted by fax and with a fax cover sheet to document successful transmission.
2 Transmitted by certified mail with a certified mail receipt and proof of service dated January 5, 2009, to confirm delivery.
3 See, KRS 61.8715.
4 See, KRS 61.870(2).
5 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."