Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in these consolidated appeals is whether the McCreary County Judge/Executive, acting in his official capacity as "Chief Magistrate of the McCreary County Fiscal Court," and his other capacity as the "Acting Director of 911 Emergency Dispatch," violated the Kentucky Open Records Act in the disposition of Mike Stephens' July 9, 2009, requests for various records concerning wrecker services provided to the County. Neither the Office of the Judge Executive nor the 911 Emergency Dispatch Center can produce nonexistent records for inspection or copying nor must either agency create a record or compile a list in order to satisfy a request; however, the Judge/Executive violated the Act in failing to affirmatively indicate whether potentially responsive documents exist aside from the few provided in response to both requests. Although a public agency cannot expected to "prove a negative" in order to refute a claim that certain records exist, under the rule announced in
Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333 (2005), the inability of the agencies to produce the records being sought 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. In the event such records do exist, but are in the possession of a different agency, the Judge/Executive must notify Mr. Stephens and provide him with contact information for the records custodian per KRS 61.872(4) .
On request form directed to "Blaine Phillips, Chief Magistrate, McCreary County, Kentucky," on July 9, 2009, Mr. Stephens requested the following:
(1) A copy of the forms and policies used by the Fiscal Court of McCreary County in the implementation of a wrecker rotation list for said county[;]
(2) A copy of the official order of the Fiscal Court issued to the McCreary County Sheriff's Office directing said office to create and implement a wrecker rotation list[;]
(3) A copy of the requirements implemented by the McCreary County Fiscal Court for a local business in said county to be included or entered on a wrecker rotation list[;]
(4) Copies of any documents maintained by your office which verify and certify the accurate implementation of a wrecker rotation list[;]
(5) A list of the name, service of process address and telephone number of the person or persons responsible, by order of McCreary County Fiscal Court, for the implementation of a wrecker rotation list.
On the same date, Mr. Stephens directed a request to the "Managing Director of 911 Emergency Dispatch" for the following:
(1) A copy of the policies and procedures used by 911 Emergency Dispatch of McCreary County in the implementation and maintenance of a wrecker rotation list[;]
(2) A copy of the call list of all requests for wrecker services made through the 911 Emergency Dispatch of McCreary County in the time frame dated July 31, 2008 to July 1, 2009 together with the name of the requesting officer and the service provider contacted[;]
(3) A copy of the above requested call list segregated as to next wrecker in rotation or owner's request[;]
(4) Copies of any documents maintained by your office which verify and certify the accurate implementation of a wrecker rotation list.
Mr. Stephens advised the Judge/Executive, on each occasion, that his request contemplated "access to records maintained in your office in all forms, to include computer, printed or any other storage media."
In a timely, but otherwise deficient response, Mr. Stephens received a "Wrecker Companies Summary," a "Wrecker Companies Detail Report," and a document entitled "Number of Incidents by Wrecker Company" in response to his requests. By letter dated August 8, 2009, Mr. Stephens initiated this appeal, noting that he submitted the first request to Mr. Phillips "in his official capacity as Chief Magistrate and the second was made to him in his function as Acting Director of 911 Emergency Dispatch." In his view, the response that he received was "incoherent and completely unresponsive" and therefore "must be interpreted as a denial." 1
Upon receiving notification of Mr. Stephens' appeals from this office (identified as Log Nos. 200900291 and 200900292), the Office of the Judge/Executive responded specifically to the latter appeal by faxing a copy of the aforementioned records to this office, which it vaguely described as "the only records the County Judge[']s [O]ffice has access to" without further elaboration. Although the Judge/Executive is not required to produce nonexistent records nor must his Office or 911 Emergency Dispatch create a record or compile a list in order to satisfy Mr. Stephens' requests, and the Judge/Executive was presumably denying that additional records exist which might be responsive in belatedly asserting that his Office does not have "access to" any of the records aside from those provided, his response was deficient.
As the Attorney General has long recognized, a public agency is not required to honor a request for nonexistent records. 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. Rather, 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. "It is therefore incumbent on the [Judge/Executive] to ascertain whether records exist [in the custody of either agency] that are responsive to Mr. [Stephens'] request[s], to promptly advise him of [his] findings, and to release to him all existing [nonexempt] records identified in his request"; nothing more, nothing less. 03-ORD-207, p. 3. In failing to clarify whether he did so, both in responding to Mr. Stephen's requests, and in responding to his appeals, the Judge Executive violated the Act.
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-188 and 07-ORD-190 is controlling; a copy of each decision is attached hereto and incorporated by reference. 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 Judge/Executive, acting in both of the named capacities, violated KRS 61.880(1) in failing to advise Mr. Stephens whether additional responsive documents exist; 3 however, the Judge/Executive did not err in denying access to nonexistent records. 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 records 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 records exist. Relying upon OAG 86-38, the Attorney General construed the obligations of the agency relative to a request for public records in the following manner:
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 previously indicated, 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. When viewed in light of the foregoing, this office must conclude that the Judge/Executive's response was deficient insofar as he failed to clearly state that no additional records exist, assuming that was the case. In the event additional records do exist in the custody of another public agency, the Judge/Executive violated the Act in failing to notify Mr. Stephens per KRS 61.872(4), pursuant to which: "If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. " However, 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." OAG 89-81, p. 3. To the extent Mr. Stephens has implicitly questioned the content or value of the records produced, such an issue is not justiciable in this forum; rather, "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3.
In light of this determination, the remaining question is whether the Judge/Executive erred in declining to create a record or compile a list ("of the name, service of process address and telephone number of the person or persons responsible...") in order to comply with Mr. Stephens' request(s). Early on, this office clarified that the "purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. For this reason, the Attorney General has consistently held that "requests for information as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3, citing OAG 76-375. Elaborating upon this position, the Attorney General has recognized:
Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
04-ORD-080, p. 13, citing OAG 87-84.
Of particular relevance here, this office has long recognized "that a public agency is not obligated to compile a list or create a record to satisfy an open records request." 02-ORD-165, p. 4 (citation omitted). See, e.g., 93-ORD-50; OAG 90-101; OAG 85-51; OAG 76-375. At page 2 of 93-ORD-50, the Attorney General recognized that the Act "was not intended to provide a requester with particular 'information,' or to require public agencies to compile information, to conform to the parameters of a given request." 02-ORD-165, p. 4. Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id., p. 5, citing OAG 91-12, p. 5. A review of the statutory language upon which these decisions are premised, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records ") (emphasis added), validates this position.
However, the analysis does not end there. "While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection [as opposed to copies prior to inspection] , during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (original emphasis). Echoing this view, the Attorney General has recognized that "one desiring that lists be made, or that broad categories of information be provided, must expend their own time digging the information out unless it has already been compiled." Id., citing OAG 89-61, p. 5. Accordingly, with the exception of the noted deficiency, this office affirms the disposition of Mr. Stephens' requests, assuming the "Wrecker Companies Summary," "Wrecker Companies Detail Report," and the document entitled "Number of Incidents by Wrecker Company," comprise the only existing nonexempt records in the custody of the Judge/Executive or 911 Emergency Dispatch which are potentially responsive.
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.
Mike StephensBlaine PhillipsRalph P. Chaney, Jr.
Footnotes
Footnotes
1 Although Mr. Stephens indicated that he "received a written response" to his requests "which was postmarked on July 13, 2009," he only provided this office with a copy of the records provided. Inasmuch as the Judge/Executive did not provide a copy of any such "written response" in responding to Mr. Stephens' appeals or challenge this omission, the Attorney General must assume that no actual written response was enclosed with the records mailed to Mr. Stephens in July.
2 As the Attorney General has also consistently held, the Open Records Act does not empower this office 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.
3 In relevant part, KRS 61.880(1) 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 records withheld.
Although the Judge/Executive appears to have complied in a timely fashion, his response lacked the specificity envisioned by this mandatory provision.