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 Nelson County Fiscal Court violated provisions of the Open Records Act in responding to Millard R. Boggs' February 9, 2010, request for records relating to "the installation of a drainage ditch and drain tile installed at 490 Ed Pile Road." We find that the Fiscal Court's response to Mr. Boggs' request did not violate the Act.
Mr. Boggs requested access to:
1. All documentation reflecting communications between Randall Spalding, Dean Watts, James Lemieux, and Sam Hutchens "pertaining to the installation of the drainage ditch at the back of . . . 1023 Jessica Drive and 490 Ed Pile Road;"
2. All documentation reflecting communications between Mr. Watts, Mr. Lemieux, Mr. Hutchins, and Mr. Spalding "pertaining to the 'FREE' installation of an additional twenty-four foot drain tile for Mr. Spalding in his front yard at 490 Ed Pile Road" (emphasis in original);
3. All documentation reflecting communications between Mr. Watts, Mr. Lemieux, and Mr. Hutchins "pertaining to the installation of the drainage ditch and the installation of the twenty-four foot drain tile for Mr. Spalding at 490 Ed Pile Road;"
4. Documentation reflecting "the cost to the taxpayers of Nelson County for the survey, utility location, the drain tile, and labor for the installation of the 'FREE' drain tile on Mr. Spalding's property at 490 Ed Pile Road" (emphasis in original).
The Fiscal Court responded to Mr. Boggs' request by providing him with records responsive to request one and advising that there were no records responsive to requests 2 and 3 because these communications were conducted verbally. With reference to request 4, the Fiscal Court advised:
No survey was done, therefore no document is available. There is no utility location cost, therefore no document is available other than the attached BUD confirmation of free service.
Additionally, the Fiscal Court advised that because drain tile "was taken out of inventory," there was no record reflecting "exact cost," and that the only record reflecting labor cost consisted of "the attached work orders."
On appeal, Mr. Boggs challenges the Fiscal Court's response, characterizing it as "a deliberate attempt to avoid [his] questions" and to perpetuate the belief that "there was no cost for this project." In supplemental correspondence directed to this office, the Fiscal Court explains, by way of background:
The work was performed in the county road right of way where a ditch was opened up and a drainage tile was installed in order to correct draining problems around and in the right of way of Ed Pile Road, a county road. Instead of answering many of the requests that there are no documents regarding the installation of a free tile on Mr. Randall Spalding's property, the Nelson County Judge instead furnished the documents that related to work performed in the county road right of way in the area near Mr. Randall Spalding's property.
The Fiscal Court proceeds to offer cogent explanations for the nonexistence of records responsive to requests 2, 3, and 4, having previously furnished Mr. Boggs with all existing records responsive to request 1. We will not unnecessarily lengthen this open records decision with a recapitation of those explanations since Mr. Boggs received a copy of the Fiscal Court's response. Ultimately, the Fiscal Court acknowledges "that there were costs associated with the ditch work," but indicates that "there is no specific documentation of that work." The Fiscal Court has agreed to provide Mr. Boggs with copies of invoices for the type of drain tile utilized, and has already provided him with copies of work orders relating to the project, but again reiterates that although a "grade shot" was taken no survey was conducted.
The Nelson County Fiscal Court asserts that it has provided Mr. Boggs with copies of the only responsive records it maintains and finds itself in the position of "proving a negative" relative to the nonexistence of any other responsive 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 1 showing that such records do exist."
In support of his claim that the Fiscal Court must maintain additional responsive records, Mr. Boggs asserts that the agency is "making a blatant attempt to blow [him] off . . . ." He makes no actual showing, prima facie or otherwise, that additional responsive records in fact exist. In the absence of such a showing, we are obligated under the rule announced in Bowling v. Lexington-Fayette Urban County Government, above, to affirm the Fiscal Court's position. 2 Accord, 06-ORD-042; 06-ORD-223; 07-ORD-045; 07-ORD-085.
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.
Millard R. BoggsDean WattsJohn S. Kelley, Jr.
Footnotes
Footnotes
1 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."
2 This is not the appropriate forum for review if Mr. Boggs believes that responsive records are being willfully concealed. KRS 61.990(2)(a) establishes a penalty for public officials who willfully conceal or destroy public records with the intent to violate the Open Records Act. Evidence of willful concealment or destruction of public records, if it exists, must be presented to the local prosecutorial authorities. The Attorney General is not empowered to render a decision on this question or any other non-open records related questions.