Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Nelson County Fiscal Court cannot be said to have erred in failing to disclose a record responsive to one of Kevin Brumley's nine requests submitted by letter dated June 28, 2010. Nor can the Fiscal Court otherwise be said to have violated the Act in partially denying those requests on the basis that no responsive records exist. This decision is, however, contingent on the assumption that County Judge Dean Watts, as official custodian of records for the Fiscal Court, conducted a search for responsive records that extended beyond records in "[his] possession."
In a line of open records decisions based on the Kentucky Supreme Court's holding in
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005), the Attorney General has recognized that in the absence of a prima facie showing by the requester that the agency maintained a record that was responsive of his or her request, the agency could not be said to have violated the law in denying a request on the basis that it maintained no responsive records. See, e.g., 07-ORD-188 and 10-ORD-149. Mr. Brumley attached documentation to his reply to the Fiscal Court's supplemental response to his appeal that he presumably obtained through his June 28 request, consisting of emails relating to the "Oreva Douglas Plat Withdrawal" and a letter from Michael E. Coen to Billy Frank Harned. He did not indicate the source of these documents. He complained, however, that the plat released to him only after he appealed the Fiscal Court's disposition of his request was in the Fiscal Court's possession at the time of his request and clearly responsive to request number eight for "all documents . . . from the preceding 4 months from the date of this request that contains the name 'Oreva Douglas,' and/or 'Douglas Estate,' and/or Douglas Auction # 1003."
The plat was, in fact, released to Mr. Brumley as an attachment to Judge Watts' July 12, 2010, supplemental response. Judge Watts indicated that it was "given to [him] by Mr. Humphrey" and that it might "be what [Mr. Brumley] is looking for," but noted that "it does not fit the description in any of his requests" insofar as "none of the names listed in his requests appear on the . . . document." Judge Watts does not indicate when he obtained the plat, although it may or may not be the plat to which he referred in his July 8, 2010, response to Mr. Brumley's July 6, 2010, open meetings appeal. We have scrutinized the plat and are unable to locate the name "Oreva Douglas," the term "Douglas Estate," or Douglas Auction # 1003 on the plat, although the term "Joseph Douglas" does appear on the plat. It may have been self-evident to Mr. Brumley that the plat pertained to Oreva Douglas, the Douglas Estate, or Douglas Auction # 1003, but it is not self-evident to this office. We therefore cannot assign error to the Nelson County Fiscal Court for belatedly disclosing the plat to Mr. Brumley.
We must, however, emphasize that as official records custodian it is incumbent on Judge Watts to conduct a search for responsive records beyond those in his possession if, as here, the request is directed to the Nelson County Fiscal Court as a public agency 1 as opposed to Judge Watts 2 as a public agency. Indeed, as this office has frequently noted, the official custodian is expected "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." 95-ORD-56, p. 7; 06-ORD-022. Assuming Judge Watts conducted such a search, we find no violation based on the nonexistence of responsive records notwithstanding the fact that his search yielded few results.
Under the rule announced in Bowling, above, and adopted as the basis of 07-ORD-188, a copy of which is attached hereto and incorporated by reference, we cannot conclude that Mr. Brumley made a prima facie showing that additional responsive records existed at the time of his request. The record on appeal does not confirm that the Nelson County Fiscal Court willfully withheld the plat, though the Fiscal Court may have interpreted request number eight too narrowly given its knowledge of the surrounding circumstances. Assuming, arguendo, that the Fiscal Court possessed the plat at the time of Mr. Brumley's request, we do not find that it concealed the plat since the plat was not literally responsive to that request.
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.
Kevin BrumleyDean WattsJohn Kelley
Footnotes
Footnotes
1 KRS 61.870(1)(b), (c), (d), inter alia.
2 KRS 61.870(1)(a).