Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Department of Revenue violated the Kentucky Open Records Act in the disposition of Cynthia Easterling's April 28, 2010, request for six items of information, namely the "origin of the complaint against taxpayer in case number 211504714," the "method used to 'locate' my vehicle," how "my residency in Kentucky was established," the "number of tax assessment letters sent to out-of-state vehicle owners," the "number of tax assessment letters sent to parents of out-of-state students who have vehicles in the Commonwealth of Kentucky . . . broken down into college campuses," and the "number of tax assessment letter[s] sent to guest workers in the Commonwealth of Kentucky." Ms. Easterling failed to submit her written request to the official records custodian of the agency per KRS 61.872(2); however, the Department's policy of requiring applicants to complete a particular form contravenes KRS 61.872(2). Given the conflicting evidence presented regarding delivery and receipt of the request, no finding is made in relation to KRS 61.880(1). With the exceptions of Items 5 and 6, the Department provided Ms. Easterling with all of the requested information upon receipt of her appeal. Having affirmatively indicated that no existing records contain those items of information, the Department has discharged its duty in the absence of a prima facie showing to the contrary.
By letter dated May 18, 2010, Ms. Easterling initiated this appeal challenging the failure of the Department to respond to her "properly submitted Open Records request within the three (3) days allowed under KRS 61.880(1)," noting that her written request, submitted "[u]nder Kentucky's Open Records Act, " was directed to the Department via certified mail, "along with a letter of appeal concerning the underlying Revenue case [# 211504714], on or about April 28, 2010. Both letters were signed for by the Department of Revenue on May 3, 2010." A copy of the certified mail receipt was enclosed along with other attachments to her appeal.
Upon receiving notification of Ms. Easterling's appeal from this office, Greg A. Jennings responded on behalf of the Department, initially observing that Ms. Easterling "did not follow proper procedure in filing her open records request with the agency." According to Mr. Jennings, the Department "placed on its website the process for filing an open records request. The front page of the website shows the form that should be used. . . . The form also states that any open records request should be filed with [Sarah E.] Pence and the appropriate addresses are included on the form for proper filing." In this case, Ms. Pence "has no record of receiving" the request. A copy of the agency's "open records request log" is attached to Mr. Jennings' response as verification.
Mr. Jennings acknowledged that the Department received a protest letter from Ms. Easterling on May 3, 2010, and it was accepted by Walter Crecilious, "who is an employee of the agency who works in the Processing and Enforcement [B]ranch[.]" Teresa Woodside, to whom the protest letter was addressed, Mr. Jennings explained, "is an employee in the State Valuation Branch of the agency," and states that "she did receive and respond to the protest letter on May 19, 20[10]." With regard to the Open Records request, Mr. Jennings indicated that it "was also addressed to [Ms.] Woodside." However, Ms. Woodside "states that she did not receive the open records request until May 25, 2010, when it was received by her from the Office of the Attorney General, which sent the open records letter by messenger mail to the agency."
In any event, Mr. Jennings reiterated, Ms. Easterling "did not file her open records request with Ms. Pence, the open records coordinator." Accordingly, "it cannot be shown conclusively" that the Department had custody of it on the date that [Ms.] Easterling claims[.]" Attached to Mr. Jenning's letter is a copy of Ms. Pence's May 27, 2010, response to Ms. Easterling in which Ms. Pence advised Ms. Easterling that she did not receive her written request dated April 28, 2010, until May 27, 2010. Citing KRS 61.872(2), Ms. Pence further indicated that the Department "does require a written application, as permitted by statute." However, according to Ms. Pence the form available on the Department's website "must be filled out and sent to my attention using one of the methods indicated on the form. Once received by the Open Records Coordinator, a response will be issued within three (3) business days in accordance with KRS 61.880(1)."
Regarding Items 1 and 2 of Ms. Easterling's request (origin of complaint and method used to locate vehicle), Ms. Pence advised that Ms. Woodside "addressed these requests in her May 19, 2010, response," a copy of which Ms. Pence attached to her May 27 letter. As Ms. Pence reiterated, Ms. Woodside advised Ms. Easterling that "'[o]n February 3, 2010, this office received a complaint through the Kentucky Freeroader program that a vehicle with an out of state plate was being operated on Kentucky roads by a Kentucky resident.'" Ms. Pence further explained that "tips received from the Freeroader program are allowed to be anonymous. It is a breach of confidentiality and taxpayer trust to reveal the identity of the reporter or how it was located (KRS 131.190)." Regarding Item 3 (how residency was established), Ms. Pence explained that "KRS 186.020 requires that all vehicles which are operated in Kentucky be registered in Kentucky. If the owner resides outside of Kentucky, the motor vehicle shall be registered in the county in which it is principally operated." Even though Ms. Easterling is not a resident of Kentucky, Ms. Pence explained, "the vehicle in question should have been registered in Kentucky because it is principally operated in Kentucky." In addressing Item 4, (no. of tax assessment letters to out-of-state vehicle owners), Ms. Pence advised that the number of tax assessment letters "varies based on the number of tips received by the Department. Since the beginning of 2010, 146 vehicle owners have been sent correspondence regarding an out-of-state vehicle that is a potential Freeroader." Finally, regarding Items 5 and 6, Ms. Pence explained that the Department "does not keep records of the type of taxpayers to whom they send tax assessment letters, such as college students or guest workers. This information is not available."
Given the conflicting evidence presented regarding delivery and receipt of Ms. Easterling's request, this office is unable to conclusively determine that a violation of KRS 61.880(1) was committed; however, the record confirms that Ms. Easterling failed to submit her written request to the Department's official records custodian. Upon receipt of Ms. Easterling's appeal, the Department responded in a timely manner to each of her questions. Inasmuch as the Department provided Ms. Easterling with all of the requested information, with the exception of Items 5 and 6, and the Department is not statutorily required to create a record or compile a list in order to satisfy a request, nor can the agency produce nonexistent records for inspection or copying, this office has no basis upon which to find a substantive violation of the Act. In requiring applicants to complete a particular form, however, the Department is acting contrary to the intent of the Open Records Act "by imposing unauthorized requirements on records access." 95-ORD-33, p. 1.
As indicated, analysis of the procedural issue(s) presented centers on the statutory language found at KRS 61.872(2), pursuant to which:
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.
At page 4 of 94-ORD-101, the Attorney General recognized:
The public agency may require, if it desires to do so, that a request or application be in writing. If a written request or application is required, the statute is satisfied if the written application whether or not submitted on the public agency's form contains the following:
1. Applicant's signature.
2. Applicant's name printed legibly.
3. Description of records to be inspected.
(Emphasis added.) Here, Ms. Easterling satisfied each of these requirements and specifically identified her written request as being submitted "[u]nder Kentucky's Open Records Act, " but erred in directing the letter to Teresa Woodside rather than Sara Pence, the "Open Records Coordinator." Although Ms. Woodside ideally would have forwarded the request to Ms. Pence upon receipt, no record of the request exists in the agency's Open Records Request Log and the Department flatly denies ever having received the request prior to Ms. Easterling's appeal, whereas the certified mail receipt attached to Ms. Easterling's appeal seems to substantiate her contrary position. When faced with factual disputes of this nature, the Attorney General has consistently observed:
[T]his office is not equipped to resolve factual dispute [s] [when presented with conflicting factual narratives]. KRS 61.880(2)(a) provides that at the request of a complaining party, the Attorney General shall review the party's request, and the public agency's response, and issue "a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884." Given this specific statutory mandate, we decline to render a decision on [the factual dispute] .
96-ORD-70, p. 3; 09-ORD-120. Here, as in 96-ORD-70, this office makes no finding on the factual dispute presented.
That being said, Mr. Jennings and Ms. Pence maintain that applicants must submit a form which is available on the Department's website. However, in addressing the sufficiency of a request, the Attorney General has consistently held that even if a request is "not identified as an open records request submitted under authority of Chapter 61 of the Kentucky Revised Statutes, it satisfie[s] the requirements of KRS 61.872(2), relative to written application, [as long as] it describe[s] the records to be inspected, and [is] signed by the applicant, with his name printed legibly thereon." 99-ORD-148, p. 2; 06-ORD-112; 01-ORD-247; 94-ORD-101; OAG 76-588. In other words, a public agency "may require a written application, as opposed to an oral request," but nothing in the Act "authorizes a public agency to reject a request simply because the requester did not use the specific form devised by the public agency. " 94-ORD-101, p. 3. Rather, a particular form "may be desired or even suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records." Id. To the extent the Department maintains on appeal that Ms. Easterling was required to complete the particular form provided on its website, its policy "makes it more difficult to inspect a public record than it was before the [Open Records Act] was enacted," its policy is "contrary to the letter and spirit" of the Open Records Act. OAG 76-588, p. 2. However, the Department cannot produce nonexistent records nor was it statutorily required to create a record or compile a list in order to satisfy Ms. Easterling's request for information.
Early on, this office clarified that "[t]he 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. On this basis, 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. In addressing this issue, the Attorney General has consistently recognized:
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. 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, 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. See, e.g., OAG 76-375.
Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." 02-ORD-165. p. 5, 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. In other words, the Department is not statutorily required to honor a request which is properly characterized as a request for information such as Ms. Easterling's request for the origin of a complaint, the method used to locate her vehicle, and the number of certain types of letters issued nor was the Department required to answer the inquiry regarding how it established her residency. However, the Department did not raise this argument in responding to her written request or in responding to her appeal; rather, the Department exceeded its duty, to its credit, in providing information and written answers in response to questions asked. Because the Department ultimately provided the requested information, with the exception of Items 5 and 6, the only question remaining is whether the Department properly addressed those items of Ms. Easterling's request.
"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, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (original emphasis). In keeping with this position, the Attorney General has noted that when a requester is unable to identify the records sought for inspection with adequate specificity, or wishes to extract information which has not already been compiled, he "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. " 98-ORD-17, p. 10, citing OAG 76-375, p. 3. Accordingly, the Department, at most, was required to provide Ms. Easterling with access to nonexempt records which might have contained the information requested at Items 5 and 6 of her written request, if any had existed, so that she could have extracted and compiled the information herself; however, the Department has advised that it does not maintain records which identify the type of taxpayers to whom it sends tax assessment letters.
As the Attorney General has consistently recognized, 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. 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, 1 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). When, as in this case, a public agency denies that any responsive documents exist within its custody or control, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9.
In responding to Ms. Easterling's appeal, the Department affirmatively indicated that no responsive documents exist and explained why. The Department now finds itself in the position of having to "prove a negative." 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 "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." 2 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 records in the absence of a prima facie showing that 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; 08-ORD-189.
On this issue, 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. In the absence of the requisite prima facie showing, the agency's response must be affirmed in accordance with Bowling and prior decisions of this office. To hold otherwise would result in the Department "essentially hav[ing] to prove a negative" to refute a claim that it maintains records which identify taxpayers to whom tax assessment letters are sent by category, i.e., college students or "guest workers." 07-ORD-190, p. 7.
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.
Cynthia EasterlingTeresa WoodsideJeff MoselyGreg A. Jennings
Footnotes
Footnotes
1 See KRS 61.8715.
2 Black's Law Dictionary, 1071 (5th ed. 1979), defines prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."