Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Eastern Rockcastle Water Association violated the Kentucky Open Records Act in the disposition of Virgil Mullins' October 10, 2010, written request for copies of specified information and financial records, including but not limited to, minutes of ERWA Board meetings from May-August 2010, financial statements for the same period of time, calendars from 2009-2010 documenting any meetings between the ERWA President and Rockcastle County Judge Executive George "Buzz" Carloftis regarding water line installation or maintenance, etc. In a timely written response, "ERWA Staff" advised Mr. Mullins that said records "may be viewed at the [ERWA] office. You may call to schedule an appointment to view these records in our office at 1:00 p.m. any afternoon between October 15th and October 22nd or Nov. 1st. We will not be available October 25th through October 29th." 1 After he inspected the existing responsive documents on Thursday, October 21, ERWA staff apparently notified Mr. Mullins that they "had been 'ordered not to make copies of any kind.'" Mr. Mullins initiated this appeal shortly thereafter, correctly noting that 10-ORD-179 (Virgil Mullins/ERWA) "clearly stated that I and members of the public, have a corollary right to obtain copies of nonexempt records after their inspection. " 2 Given the agency's refusal to provide any proof in support the belated assertion that ERWA is not a "public agency" within the meaning of KRS 61.870(1)(h), notwithstanding our KRS 61.880(2)(c) request for additional documentation, this office must conclude, as in 10-ORD-179, that ERWA violated the Act, specifically KRS 61.874(1), in failing to provide Mr. Mullins with copies of the records at issue after his inspection of same.
Upon receiving notification of Mr. Mullins' appeal from this office, agency counsel Jerry J. Cox briefly responded on behalf of ERWA, stating that "when Mr. Mullins came to its office on October 21, 2010, he was presented with items 1-5 and 8-9 on the list which is attached to his appeal. Items 6 and 7 do not exist and Mr. Mullins was informed of that fact." 3 ERWA does not know what Mr. Mullins looked at, Mr. Cox observed, as "he wasn't in the office very long." In closing, Mr. Cox asserted, for the first time, that ERWA "is exempt from the Open Records Act under KRS 61.870(1)(h) because it does not derive at least 25% of the funds expended by it in the Commonwealth of Kentucky from State or Local funds." Be that as it may, the agency "has volunteered to give the information to Mr. Mullins," according to Mr. Cox, "and has made its best efforts to do so." Absent from the agency's response to Mr. Mullins' appeal was any further explanation or evidence to substantiate this assertion.
Unable to resolve this newly raised issue given the scarcity of evidence presented, the undersigned counsel asked Mr. Cox to provide this office "with a copy of any supporting documentation (financial statement, budget, etc.) from the fiscal year that encompasses the period for which records were requested that would assist us in resolving this threshold issue." Due to the time constraints imposed on this office by KRS 61.880(2)(a) , the undersigned counsel requested that Mr. Cox ensure "that any relevant documentation is received in this office by facsimile transmission and/or U.S. mail on or before November 19, 2010." 4 As of this date, no response of any kind from ERWA has been received. Because ERWA did not initially raise this defense nor did the agency offer any proof in support of its belated claim, despite having a second opportunity to do so, this office must proceed in briefly addressing the merits of Mr. Mullins' appeal based upon the assumption that ERWA is a "public agency" for purposes of the Open Records Act. In the event future appeals involving ERWA are filed, ERWA will have another opportunity to build its case then.
ERWA has not challenged the specificity of Mr. Mullins' request or declined to provide him with access to any existing records; accordingly, the remaining question is whether ERWA was required to provide him with the requested copies. The short answer is "yes." Pursuant to KRS 61.874(1), a requester " shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies . . ." (Emphasis added.) Simply put, when a public agency provides a requester with an opportunity to inspect records, the "requester enjoys a corollary right to obtain copies" of those records. 02-ORD-168, p. 7, citing KRS 61.874(1) and OAG 89-40. See 04-ORD-053; 10-ORD-154. As Mr. Mullins correctly observed in his letter of appeal, this office previously recognized as much in a recent decision involving these parties, namely, 10-ORD-179, at page 3, footnote 3. This office sees no reason to belabor the point here. ERWA may require advance payment of the copying fee per KRS 61.874(1) but is required to not only provide Mr. Mullins with an opportunity to inspect existing responsive documents, but also provide him, or any member of the public, with copies upon request and receipt of payment.
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.
Virgil MullinsDavid BallingerWilliam D. ReynoldsJerry J. Cox
Footnotes
Footnotes
1 In construing KRS 61.872(3), which mandates that public agency records be accessible by the public "during the regular office hours of the public agency, " this office has consistently recognized that "any attempt by a public agency to limit the period of time in which a requester may inspect public records places 'an unreasonable and illegal restriction' upon the requester's right of access." 02-ORD-094, p. 4 (citation omitted). The only recognized exception is when a public agency "has a very small complement of employees or restricted and irregular office hours, " which may or may not be true in this case. Id. Under such circumstances, the Act contemplates that the parties will agree upon a mutually convenient time and place for the requester to inspect public records. Id., pp. 4-5 (citation omitted). "In the interest of absolute clarity," this office reiterates that Mr. Mullins (or any requester) "cannot be required to make an appointment to inspect the records, inasmuch as such a requirement could be interpreted as an illegal restriction on access but may make such an appointment as a reasonable accommodation to [ERWA]." Id., p. 5.
2 Although Mr. Mullins further challenged the apparent failure of ERWA to post rules and regulations per KRS 61.876, this issue is not ripe for review as ERWA was not presented with an opportunity to address the allegation prior to Mr. Mullins' appeal.
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3 Public agencies cannot produce nonexistent records for inspection or copying nor are public agencies required to "prove a negative" in order to refute a claim that certain records exist in the absence of a prima facie showing. See Bowling v. Lexington Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005); 07-ORD-188; 07-ORD-190.
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4 Because of the limited time remaining before the statutory deadline for issuance of a final decision regarding this matter, the undersigned counsel requested the documentation via e-mail; however, the November 15 e-mail was not returned as undeliverable, and on Friday, November 19, the undersigned counsel spoke with someone at Mr. Cox's office and confirmed that the e-mail address used was correct.
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