Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of Danville violated the Kentucky Open Records Act in the disposition of Clay P. Moore's April 28 and July 22 requests for a "signed copy of the municipal parking garage lease amendment for each of the following four (4) [entities] and the number of stalls that each is currently paying the City rent for . . . Farmers National Bank, Central Kentucky Ambulatory Surgery Center Real Estate, LLC, LanReal, Inc., and Ephraim McDowell Regional Medical Center, Inc." In failing to issue a written response within three business days of receiving Mr. Moore's initial request, and either provide all of the records or cite a statutory basis for denial and explain how it applied, the City violated KRS 61.880(1). Because the City later provided Mr. Moore with copies of the original agreements between the City and each of the named parties and unexecuted copies of the lease amendments, which are the only existing records containing the requested information (the number of stalls) , this office finds that no substantive violation occurred. A public agency cannot produce that which it does not have and the City has affirmatively indicated that said lease amendments have not been executed by the parties; nothing more is required.
In a timely written response to Mr. Moore's July 22 request, H. Vincent Pennington, III, attorney at law, advised Mr. Moore as follows:
Pursuant to your request, I enclose unsigned copies of the lease amendments for Central Kentucky Ambulatory Surgery Center Real Estate, LLC, LanReal, Inc. and Ephraim McDowell Regional Medical Center, Inc. These lease amendments have not been executed at this point. I also enclose a photocopy of the lease amendment between the City and Farmers National Bank, which has been signed by the representatives from Farmers National Bank but which apparently has not been signed by the City officials as of this date.
The lease agreements between the City and Central Kentucky Ambulatory Surgery Center Real Estate, LLC and Farmers National Bank specify the number of stalls for which each tenant is currently paying the City. In regard to the LanReal lease agreement, the total number of stalls (35) is specified in the original lease agreement between the parties, a copy of which is also enclosed for your review. The total number of parking spots is also specified in the original lease agreement between the City and Ephraim McDowell, a copy of which is enclosed.
Mr. Moore subsequently initiated this appeal.
According to Mr. Moore, he asked the City Clerk on "the day following the due date about" his initial request, but "was told the requested leases were in the City Attorney's [o]ffice," and he would be notified when she received them; however, Mr. Moore "was never notified. " In his view, the City's July 26 response to his July 22 request was also "incomplete as two of the leases, Ephraim McDowell . . . and [LanReal] were unsigned by the tenants and the assigned stall number[s] were not included in either unsigned lease. "
Upon receiving notification of Mr. Moore's appeal from this office, Mr. Pennington responded on behalf of the City, noting that notwithstanding Mr. Moore's complaint regarding the status of the lease amendments, they "have not been executed by the parties at this point and there is simply nothing further I can provide him." Additionally, Mr. Moore reiterated that the lease amendment between the City and Farmers National Bank, a copy of which the City provided to Mr. Moore, "has been signed by representatives of Farmers National Bank but has not been signed [by] the City officials as of this date [August 9]." Mr. Pennington enclosed a copy of his July 26 response as well as copies of the original agreements between the parties and the unexecuted lease amendments between the parties. In closing, Mr. Pennington advised that said records "specify the number of parking stalls leased by each tenant as well as the total charge for each such parking stall. " Because the City is not required to produce nonexistent records for inspection or copying, nor can this office declare that its failure to execute a contract(s) is a violation, this office affirms the agency's ultimate disposition of Mr. Moore's request.
As a public agency, the City is obligated to comply with the procedural and substantive provisions of the Open Records Act, regardless of the requester's identity or purpose in requesting access to the records generally speaking. 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." (Emphasis added.) A "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 record withheld. " KRS 61.880(1) . 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.
By its express terms, KRS 61.880(1) requires a public agency to issue a written response within three business days of receiving a request. In general, a public agency cannot postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day response time codified at KRS 61.880(1). See 05-ORD-134, pp. 3-5. Although the burden on the agency to respond within three working days in writing, is, not infrequently, an onerous one, the only exception to this general rule is found at KRS 61.872(5), which the City did not invoke. 02-ORD-165, p. 3. As the Attorney General has consistently 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. Failing to respond in a timely and proper fashion, as the City did initially, constitutes a clear violation of KRS 61.880(1). To avoid future procedural violations, the City should issue a written response, within three business days of receiving a request, including a statement of the specific exception(s) authorizing the withholding of the records, and a brief explanation of how the exception(s) applies to the records withheld, if any.
With the exception of this procedural violation, the City did not err in responding to Mr. Moore's request(s). 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; 04-ORD-205. A public agency's response 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 indicating that no such records exist as the City did here. On many occasions, the Attorney General has expressly so held. 04-ORD-061, p. 6 (agency discharged its duty under the Act in affirmatively indicating that it did not have an executed contract); 01-ORD-233 (agency committed procedural violation of Act in failing to affirmatively indicate that it did not have an executed copy of contract but could not produce that which it did not have); see also 99-ORD-98.
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). Simply put, Kentucky's Open Records Act applies to records that currently exist, 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 beyond those provided, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9. This office is "not empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." 08-ORD-206, p. 1. Nor is the Attorney General empowered to require a public agency to create a record(s) or declare its failure to create a record(s) improper. 95-ORD-48, p. 2; 05-ORD-183.
Since Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005) (addressing the dilemma created when a public agency denies that certain records exist and then finds itself in the position of having to "prove a negative") was issued, this office has consistently upheld the denials by public agencies of requests, based on the nonexistence of the records being sought, in the absence of a prima facie showing that such records did, in fact, exist. See 10-ORD-012; 09-ORD-199; 08-ORD-193; 07-ORD-244. 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, this office must affirm the City's ultimate disposition of Mr. Moore's request(s) in accordance with Bowling, above, and prior decisions of this office such as 07-ORD-188 and 07-ORD-190. To hold otherwise would result in the City "essentially hav[ing] to prove a negative" in order to refute Mr. Moore's implicit claim that executed lease amendments exist. 07-ORD-190, p. 7. As the Attorney General has long recognized, 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. Indeed, such is not the role of this office" under the Act. OAG 89-81, p. 3.
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.
Clay P. MooreDonna PeekH. Vincent Pennington, III
Footnotes
Footnotes
1 See KRS 61.8715.
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