Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Lexington-Fayette Urban County Government violated the Open Records Act in the disposition of David N. Shattuck's April 17, 2009, "request." For the reasons that follow, we find that because Mr. Shattuck requested the creation of a new record, to wit, written confirmation that no records exist that are responsive to his earlier request other than those already provided, rather than access to an existing record, his April 17 "request" did not conform to KRS 61.872(2). Further, we find that because any issues related to his earlier request, expressed or implied, were not presented to this office in accordance with KRS 61.880(1), those issues are not ripe for review. 40 KAR 1:030 Section 1.
On March 17, 2009, Mr. Shattuck requested access to all records relating to a statement appearing on page 12 of the Downtown Streetscape Master Plan to the effect that "conversion of Limestone and Upper and High and Maxwell could also be achieved . . . ." Although Mr. Shattuck did not provide this office with a copy, LFUCG responded to his request on March 20, 2009, advising him that a search was underway of the "Divisions that may have records responsive to [his] request," and that responsive records would be available on March 27. LFUCG thereafter furnished Mr. Shattuck with the only record located in its search: the Entran traffic study. It is unclear when the traffic study was disclosed to Mr. Shattuck 1 or whether it was accompanied by a cover letter.
On April 17, Mr. Shattuck submitted a letter to LFUCG in which he questioned the paucity of records produced, and asked that LFUCG "comply with the Act by affirmatively stating that no records exist that are responsive to the request." Having received no response to his letter, Mr. Shattuck initiated this appeal on May 1, 2009, challenging LFUCG's "refusal to respond one way or another . . . ." He attached a copy of his April 17 and March 17 letters, but no other documentation of any kind.
In correspondence directed to this office following commencement of Mr. Shattuck's appeal, LFUCG urged the Attorney General to dismiss the appeal because he "did not follow the statutory requirement of attaching LFUCG's response to his original records request; the records have been provided to [him]; there is no requirement in the Open Records Act that a government agency affirmatively state there are no records responsive to the request when records have been provided to the requester; and there is no provision in the Open Records Act regarding disputes over an interpretation of the content of the records provided." In large measure, we concur.
Mr. Shattuck's April 17 letter did not conform to KRS 61.872(2). That statute provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
(Emphasis added.) In construing this statute, the Kentucky Supreme Court recently observed that "KRS 61.872(2) only requires that one seeking to inspect public records may be required to submit a written application 'describing the records to be inspected. '"
Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008). The records to be inspected are those defined at KRS 61.870(2) as "documentation, regardless of physical form or characteristics, which [is] prepared, owned, used, in the possession of or retained by a public agency. " The Open Records Act thus governs access to existing public records already "prepared, owned, used, in the possession of or retained by a public agency, " and does not impose on the public agency the duty to create a record to satisfy a particular request. Mr. Shattuck's April 17, 2009, request for a written statement from LFUCG that no additional records responsive to his March 17, 2009, request exist, was, in reality, a demand for records creation not contemplated by the Act, and the agency was not obligated to honor it. Accord, 09-ORD-055. 2 While we encourage LFUCG to treat such a demand, however irregular it may be, as an open records request to which a timely written response must be made, 3 in the interest of avoiding future complaints of this nature, we are unwilling to assign error under these circumstances.
We concur with LFUCG that any issues arising from its disposition of Mr. Shattuck's March 17 request are not ripe for review by this office owing to his failure to include a copy of the agency's March 20 written response. In this regard KRS 61.880(2)(a) provides:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
(Emphasis added.) Amplifying on these requirements, 40 KAR 1:030 Section 1 provides, in pertinent part:
The Attorney General shall not consider a complaint that fails to conform to . . . KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the public agency provided a denial.
Although LFUCG provided this office with a copy of its March 20 response in its supplemental response, Mr. Shattuck did not do so. This office is foreclosed from considering any issues related thereto or arising therefrom by virtue of Mr. Shattuck's failure to conform to KRS 61.880(2)(a). Accord, 08-ORD-228; 08-ORD-044; 07-ORD-188; 06-ORD-184; 06-ORD-151; 06-ORD-060; 06-ORD-050.
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.
Distributed to:David N. ShattuckMichael R. Sanner
Footnotes
Footnotes
1 Mr. Shattuck indicated that on "April 10, LFUCG produced a single document . . . : the Entran traffic study. "
2 As an aside, we note that the statement Mr. Shattuck sought from LFUCG most often appears in denials based on the nonexistence of any responsive records. See, e.g., 07-ORD-002 (recognizing that "an 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"). In the appeal before us, LFUCG produced a 41 page record. While Mr. Shattuck questions the responsiveness of the document, LFUCG's response cannot be characterized as a "denial." Moreover, it can reasonably be inferred from LFUCG's response that no records, other than the 41 page record produced, exist.
3 That response would consist of a simple statement that LFUCG is not obligated to create a record where none currently exists.