09-ORD-073 | KOGC

Opinion

Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General

Open Records Decision

At issue in this appeal is whether the Bullitt County Judge Executive violated the Kentucky Open Records Act in denying Donna Etherton's request(s) for "detailed cell phone records and landline records from the Bullitt County Detention Center for" specified telephone numbers during the period of January 1, 2009, to January 31, 2009. Inasmuch as the Judge Executive has apparently provided Ms. Etherton with an opportunity to inspect all existing records in the custody or control of the agency which are potentially responsive, this office has no basis upon which to find a violation. A public agency cannot produce for inspection or copying nonexistent records or those which it does not possess, nor is the Attorney General empowered to resolve a dispute concerning a disparity between the records being sought and those provided.

In a timely written response, Bullitt County Judge Executive Melanie J. Roberts advised Ms. Etherton that the requested records were available for inspection at her office during regular business hours. 1 By letter dated March 8, 2009, Ms. Etherton advised Judge Executive Roberts that her March 3 request "was not met" and resubmitted the same request. Upon receipt of Ms. Etherton's letter on March 30, 2009, Judge Executive Roberts confirmed that while at her office on March 9, 2009, she was "given full access to all phone bills and/or records which this office is in possession of."

Ms. Etherton subsequently initiated this appeal, clarifying that she was asking for the bills "that show what phone numbers were called on what day and date, and to what number" as opposed to the "phone bill with the dollar amount that the county owes." Attached to her appeal is a copy of a letter directed to her in her capacity as Administrative Assistant for Bullitt County Code Enforcement, by Robert P. Flaherty, Assistant County Attorney, on November 21, 2008, regarding an unrelated Open Records request for information maintained in electronic format by "Franklin Information Systems, a third-party vendor. " Because the records were maintained by a contractor of the County, Mr. Flaherty correctly advised her in that instance that Code Enforcement was "still responsible for providing the requested records pursuant to the Kentucky Open Records Act. "

Upon receiving notification of Ms. Etherton's appeal from this office, Mr. Flaherty responded on behalf of the Judge Executive, initially observing that her office "has made available all public records in its custody and control for inspection by Ms. Etherton." As Mr. Flaherty correctly noted, the "fact that Ms. Etherton was unable to locate the specific information she was looking for does not constitute a violation" of the Open Records Act; rather, the Attorney General "has consistently held that a public agency is not required to create records that it does not maintain in the normal course of business for the purpose of responding to an Open Records request." According to Mr. Flaherty, the "detailed records" Ms. Etherton requested "are not prepared by, owned by, used by, in the possession of, or retained by the public agency. As such, they do not constitute a 'public record' as defined by KRS 61.870(2)." 2 A public agency, Mr. Flaherty argued, "is not required to seek out and produce information that it does not maintain custody or control over for the purpose of satisfying a specific inquiry of an applicant." Mr. Flaherty explained that the situation about which Ms. Etherton previously sought advice is factually distinguishable from this matter as those records "were prepared by, owned by, and used by Bullitt Count Code Enforcement." 3 In closing, Mr. Flaherty asserted that the Judge Executive "has fully complied" with the request at issue "and has made all public records in its custody or control available for inspection by Ms. Etherton."

Ms. Etherton subsequently advised that "[i]n the past the [C]ounty always received detailed bills to ensure that employee's [sic] were not misusing [C]ounty property"; therefore, "the detailed bills were used by the [C]ounty. " According to Ms. Etherton, "Planning and Zoning[,] the Bullitt County Jail, and Bullitt County Code Enforcement are just [a few of the] departments that received those detailed bills in the past. She asserted that she is "not asking for anything that has not been part of the way the [C]ounty has done business before." Although the software vendor to which Mr. Flaherty referred maintains the records of Code Enforcement electronically, the "voluminous paper records that he is referring to [are] stored in [its] office and in the Bullitt County [Courthouse] 2nd floor storage area" as the agency is "required to keep all records for 5 years before they can be destroyed."

Because the Judge Executive does not maintain itemized or "detailed" telephone billing records for the Detention Center in the normal course of business, and is not statutorily required to acquire such records from the service provider, the Judge Executive complied with the Act in producing all potentially responsive documents for inspection; a public agency is not obligated to honor a request for nonexistent records or those not within the custody or control of the agency. 4

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. 07-ORD-190, 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 Judge Executive has repeatedly asserted here. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 99-ORD-98. Under circumstances like those presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2; 04-ORD-205; 94-ORD-140. Our scope of review is expressly limited by the language of KRS 61.880(2)(a).

Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records, 5 the Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). 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 open to public inspection. 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. See 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 responsive documents exist within its custody or control beyond those provided, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83. This office is "not empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability. " 08-ORD-206, p. 1. Of particular significance, in 02-ORD-164 this office specifically recognized that a public agency, which had "acknowledged its duty to disclose routine billing documents supporting fees to be paid" for cellular telephone use, was "not obligated to obtain itemized billing records from its provider in order to satisfy [a] request, notwithstanding [the requester's] concern that [the records provided did] not contain the specific information that [he sought]." 02-ORD-164, p. 5. Rather, the agency "satisfied the requirement of public accountability recognized in City of Louisville v. Cullinan [citation omitted]" by disclosing the "existing public records documenting public funds expended for use of cellular telephones under its contract with a private provider. " Id. As in 02-ORD-164, this office concludes that the public agency is not "statutorily obligated to obtain itemized billing records from its cell phone [or landline] provider. " Id., p. 3.

Both initially, and in responding to Ms. Etherton's appeal, the Judge Executive asserted that no additional responsive documents aside from those already provided for inspection. The Judge Executive now finds herself in the position of having to "prove a negative" in order to conclusively refute Ms. Etherton's claim that additional records exist. Addressing this dilemma, in Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (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.

For these reasons, the Court determined "that before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist." 6 Neither the alleged prior practices of the County, nor the alleged current practices of Code Enforcement (or any other local agency) with regard to different kinds of records constitute such a showing.

In a series of decisions issued since Bowling, this office has been obliged to affirm public agency denials of requests based upon the nonexistence of responsive documents in the absence of a prima facie showing that the documents being sought did, in fact, exist in the possession of the agency. See, e.g., 06-ORD-042; 07-ORD-188; 07-ORD-190. Because the instant appeal presents no reason to depart from this approach, the same result follows here. In our view, the analysis contained in 07-ORD-188 and 07-ORD-190 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. In the absence of the requisite prima facie showing, this office must affirm the Judge Executive's disposition of Ms. Etherton's request(s) 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. To hold otherwise would result in the Judge Executive "essentially hav[ing] to prove a negative" in order to refute a claim that additional records exist. 07-ORD-190, p. 7. 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. Nor is the Attorney General "empowered to declare, in the context of an open records appeal, that [a public agency's] failure to require that the records be submitted to it, and managed and maintained as public records, constitutes a violation of the Open Records Act. " 99-ORD-202, p. 2.

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.

Donna EthertonMelanie J. RobertsRobert P. Flaherty

Footnotes

Footnotes

1 Although Ms. Etherton does not raise this issue, the Judge Executive further advised her that a "charge of 30 cents per copy" would be imposed. In Friend v. Rees, Ky. App. 696 S.W.2d 325 (1985), the Kentucky Court of Appeals held that 10 cents per page is a reasonable charge for the reproduction of standard hard copy records. For this reason, the Attorney General has consistently held that unless a public agency can substantiate that its actual cost for making photocopies, i.e., reproduction, is greater than 10 [cent] per page, any copying charge in excess of this amount is presumptively excessive. 06-ORD-147; 04-ORD-217; 01-ORD-114; 92-ORD-1491.