Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Clay County Fiscal Court violated the Kentucky Open Records Act in the disposition of Michael Dean's June 6, 2011, request for "[a]ll records" relating to the "waterline project for Allen River Road" and "the Byrd Town waterline project," including, but not limited to "engineering plans, specifications, surveys, maps, advertisement for bids, notice of contract awards, contracts, notices of fiscal court meetings, minutes of fiscal court meetings, correspondence, and financial documents showing the receipt, deposit, and expenditure of any State, Federal, or local funds for the project[s]." Judge Executive Joe L. Asher enclosed some purportedly responsive documents with his June 13, 2011, response to Mr. Dean, including a document entitled "History of New Found and Teges Road design," but none of the documents being sought; accordingly, on June 15, 2011, Mr. Dean resubmitted his request, acknowledging that "the Newfound waterline was just now extended to the Robinson Farm on Newfound Road." Mr. Dean again requested to be provided with all of the documents previously described, "in either hard copy or electronic format," and noted that since "Allen River Road would have been part of the Newfound [R]oad water project," that he would identify it as such. The Judge/Executive did not respond on behalf of the Fiscal Court upon receipt of Mr. Dean's second request. On appeal the Fiscal Court maintains, through Clay County Attorney Clay M. Bishop, Jr., that no responsive documents exist, but "if Mr. Dean wishes to visit the [Judge/Executive's Office] during regular business hours to conduct his own inspection," his staff will assist Mr. Dean in locating the records that he seeks. Mr. Dean subsequently provided this office with sufficient facts and legal authority from which the existence of at least some of the documents in dispute may be presumed. Because the Fiscal Court has not attempted to rebut this presumption, the Attorney General must conclude, in accordance with 11-ORD-074, that its disposition of Mr. Dean's request was deficient.
On June 28, 2011, this office contacted Mr. Dean to confirm that he received a copy of Mr. Bishop's response to his appeal. This office also requested that Mr. Dean advise whether he possessed "any objective proof that additional documentation exists" inasmuch as the Fiscal Court did not appear to be "denying access to existing documents." In reply, Mr. Dean confirmed receipt of Mr. Bishop's response. He further asserted:
The County is indeed denying access to existing documents. The County Judge Executive admitted in his initial reply to my request that the two County Water projects existed. [Kentucky] law mandates that all projects greater than $ 20,000 be appropriately advertised and awarded to a contractor based on competitive bidding. See KRS 424.260. The Fiscal Court also would have hired an engineering firm to design the water project and prepare plans and specifications for the Court and the contractor to follow. The Fiscal Court is also required by law to maintain minutes of all meetings and every official action must be made a part of the permanent records of the County. See KRS 67.100. Therefore, the County cannot deny that the records exist -- [i]f they don't then it is violating the law. As for its claim that the records do not exist but that I can inspect any that do, it would be silly for me to attempt to inspect records that it claims do not exist.
In the interest of fairness, this office forwarded a hard copy of Mr. Dean's e-mail to Mr. Bishop on June 30, 2011, via facsimile transmission, affording him until July 8, 2011, to address the points that Mr. Dean raised. On July 11, 2011, a representative of the Clay County Attorney's Office advised that "Mr. Bishop thinks the [C]ounty has done all it can in response to the request, that he does not know what the prior judge may have said or done about this, and that he has no personal knowledge of the matter." Seemingly contradicting his earlier assertion regarding the nonexistence of such records, the County Attorney requested "an additional [two (2)] weeks to try to compile any additional records" in the event this office decided that "the County failed in its duty[.]" This office advised that any discussion of whether the agency had complied with relevant provisions of the Open Records Act was not permissible given that Mr. Dean's appeal was pending.
Having ultimately denied the existence of any responsive documents, the Fiscal Court now finds itself in the position of having to "prove a negative" in order to conclusively refute Mr. Dean's claim that such records exist. Addressing this dilemma, in
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 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." 1 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 records in the absence of a prima facie showing that the records 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. However, this office recently had occasion to clarify its position regarding the duties of a public agency under circumstances where, as in this appeal, the existence of the records in dispute is postulated on existing legal authority or facts in evidence rather than speculation.
In holding that the public agency's response was deficient, inasmuch as it offered no explanation for the nonexistence of the record(s) in dispute notwithstanding legal authority mandating creation of such a record(s), this office reasoned as follows:
. . . Kentucky's courts have struggled with the dilemma posed when agencies deny a record's existence rather than claiming a statutory exemption as the basis for denial. The courts recognized, on the one hand, that "allowing public agencies to avoid judicial review by denying a record's existence . . . remove[s] accountability from the open records process," and, on the other, that public agencies may be unreasonably burdened by "the unfettered possibility of fishing expeditions for hoped-for but nonexistent records . . . ." Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005). The courts resolved the dilemma by determining that "before a complaining party is entitled to . . . . a hearing [to disprove the agency's denial of the existence of records,] he or she must make a prima facie showing that such records do exist."
At the administrative level, a record's existence can be presumed where statutory authority for its existence has been cited or can be located. KRS 61.880(2)(a) restricts the Attorney General's review of an open records dispute to a written record consisting of the request and denial. 40 KAR 1:030 Section 2 provides for a supplemental response to be considered in resolving the dispute. KRS 61.880(2)(c) authorizes the Attorney General to "request additional documentation from the agency for substantiation." None of these provisions permit a hearing on the existence or nonexistence of a public record. To insure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective," Bowling at 341, we believe the existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable. The agency can overcome the presumption by explaining why the "hoped-for record" does not exist.
The Cabinet [for Health and Family Services] relies on 07-ORD-033 in support of its position. There, the requester asked for a record identified as follows:
Not only did the requester fail to cite specific legal authority directing the creation of the confidentiality agreement, he expressed doubt as to its existence. Our research disclosed no requirement that such a record exist. Under these circumstances, we were disinclined to ask the agency to "prove a negative . . . by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives." Bowling at 341.
In the appeal before us, a nine-year-old child died under circumstances suggesting abuse and/or foul play. The child was alleged to have been under the Cabinet's care, and this allegation appeared in the record on appeal. KRS 620.050(12) requires the Cabinet "to conduct an internal review of any case where child abuse or neglect resulted in a child fatality or near fatality" if the Cabinet "had prior involvement with the child or family." Nevertheless, the record on appeal from the Cabinet's March 3 denial of [the] February 15 request was devoid of any explanation for the nonexistence of responsive records. Under these circumstances, the Cabinet was obligated to provide such an explanation in its initial denial. Failing that, it was obligated to provide written responses to our KRS 61.880(2)(c) inquiries to substantiate its position. Because the [Cabinet's] response to [the] request was, at best, "limited and perfunctory," 2 we find that it was substantively, as well as procedurally, deficient.
11-ORD-074, pp. 3-5 (emphasis added).
Mr. Dean persuasively argues that certain responsive documents, if not all, must exist. A review of KRS 424.260 and 67.100, 3 in short, confirms both of his assertions regarding the statutory requirement(s) that certain of the documents requested, such as advertisement (s) for bids, notice (s) of contract awards, notices of Fiscal Court meetings, and minutes of Fiscal Court meetings, at a minimum, should have been created. In addition, KRS 61.835 mandates that every "public agency" (as defined at KRS 61.870(1)), such as the Fiscal Court, record "[t]he minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings," and that such records "be promptly recorded," and "be open to public inspection at reasonable times no later than immediately following the next meeting of the body." Compare 11-ORD-081 and 11-ORD-091 (neither appellant cited authority for his assertion that certain records existed or must have been created and our independent research located none). Because "statutory authority for [their] existence has been cited," the existence of at least some responsive documents can be presumed under 11-ORD-074.
The Fiscal Court has not asserted that any or all records which may be responsive to Mr. Dean's request are in the custody of a different public agency or were destroyed in the normal course of business in accordance with applicable records retention schedules, even assuming that applicable schedules would permit as much, or even asserted that such records were created and then lost, maintaining instead that no such records exist without explanation both initially and in response to Mr. Dean's appeal. 4 The Fiscal Court should have responsive minutes at a minimum. Because Mr. Dean has "produced . . . affirmative evidence, beyond mere assertions, that the agency possessed such records as he has requested, we do . . . have a sufficient basis on which to dispute the agency's representation that no such records exist." 09-ORD-214, pp. 3-4 (emphasis added); compare 11-ORD-091. The Fiscal Court has not even attempted to "overcome the presumption by explaining why the 'hoped-for record[s do] not exist." Accordingly, this office concludes that the Fiscal Court's disposition of Mr. Dean's request was both procedurally and substantively deficient.
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.
Distributed to:
Michael Dean, J.D., P.E.Joe L. AsherClay M. Bishop, Jr.
Footnotes
Footnotes
1 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."
2 Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996).
3 KRS 424.260(1) provides:
Except where a statute specifically fixes a larger sum as the minimum for a requirement of advertisement of bids, no city, county, or district, or board or commission of a city or county, or sheriff or county clerk, may make a contract, lease, or other agreement for materials, supplies except perishable meat, fish, and vegetables, involving an expenditure of more than twenty thousand ($ 20,000) without first making newspaper advertisement for bids.
In relevant part, KRS 67.100 provides:
(1) The fiscal court is a court of record. Minutes of the proceedings of each meeting shall be prepared and submitted for approval at the next succeeding meeting.
(2) Every official action of the fiscal court shall be made a part of the permanent records of the county.