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 Public Advocacy violated the Kentucky Open Records Act in failing to issue a written response upon receipt of Robert Miller's June 22, 2010, request for "confirmation that D.P.A. [attorney] Brian Ruff was appointed to represent me concerning Indictment No. 95-CR-02129 in the Court of Appeals No. 04-CA-783 [sic] or any other appellate procedure regarding this case." Although DPA was not statutorily required to honor this request as framed, the agency violated KRS 61.880(1) in failing to issue a timely written response advising him of that fact. In the alternative, DPA would have been required to produce any non-exempt records in the custody of the agency which might have contained such information; however, DPA ultimately discharged its duty in advising Mr. Miller that he acted pro se in Case No. 2004-CA-000783 and providing him with documentation substantiating that assertion. With the exception of the noted procedural violation, this office finds no error in the agency's disposition of Mr. Miller's request. DPA cannot produce that which it does not have.
Upon receiving notification of Mr. Miller's appeal from this office, Mary Ann Palmer, General Counsel, responded on behalf of DPA, apologizing for the delay and explaining that Mr. Miller "was pro se in his appeal Case # 2004-CA-000783 (Case # 95-CR-002129)." Ms. Palmer enclosed the "Opinion and Court Net printout" as verification. Because Mr. Ruff apparently did not represent Mr. Miller, it stands to reason that DPA does not possess a document containing the requested 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; 04-ORD-144. Accordingly, 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; 04-ORD-080. In addressing this issue, the Attorney General has often 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. See also OAG 90-19; OAG 89-81.
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, 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 sum, DPA is not statutorily required to honor a request which is properly characterized as a request for information such as the request made by Mr. Miller.
Although public agencies are normally required to make any non-exempt records that may contain the information sought available for inspection, assuming that any exist, DPA has now confirmed that Mr. Miller acted pro se, meaning that DPA does not have any "confirmation" that attorney Brian Ruff was appointed to represent him on appeal. 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. 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 already exist, and which are in the possession or control of the public agency to which the request is directed.
However, since KRS 61.8715 was enacted in 1994, this office has applied a higher standard of review to denials premised on the nonexistence of the records being sought. In order to satisfy the burden of proof imposed by KRS 61.880(2)(c), a public agency must offer a credible explanation for the nonexistence of the records at a minimum. 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). This DPA has done. As in these decisions, the record on appeal is devoid of evidence to raise the issue of good faith. To the contrary, DPA has not only provided a more than credible explanation for the lack of responsive records, it has provided objective proof. When, as in this case, a public agency denies that any responsive records exist within its custody or control, and the record on appeal supports rather than refutes that contention, further inquiry is unwarranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9. See
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005); 07-ORD-190; 07-ORD-188. The ultimate disposition of Mr. Miller's request is therefore affirmed.
From a procedural standpoint, DPA violated the Act in failing to issue a timely written response upon receipt of Mr. Miller's request. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . 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." When construing the mandatory language of this provision, the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208. As the Attorney General has long recognized, the procedural requirements codified at KRS 61.880(1) "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 03-ORD-067, p. 2, citing 93-ORD-125, p. 5. Because DPA is undoubtedly familiar with KRS 61.880(1), and has not only acknowledged this error, but also taken steps to ensure that future procedural violations do not occur, 2 this office will not belabor the issue.
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.
Robert Miller, # 123099Mary Ann Palmer
Footnotes
Footnotes
1 See KRS 61.8715.
2 In a telephone conversation with the undersigned counsel (regarding the deadline for the agency's response to Mr. Miller's appeal), Ms. Palmer explained that a recent personnel change probably resulted in the unintentional delay and she has addressed the problem internally.