Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Nicholasville Board of Ethics violated the Kentucky Open Records Act in denying the November 6, 2011, request 1 made by Laura Butler on behalf of The Jessamine Journal for "[a]ny and all complaints brought to the ethics committee involving" members of the Nicholasville Planning Commission, City Attorney Bill Arvin, Clay M. Corman, David R. Marshall, or Banks Engineering. The Jessamine Journal also sought "documents detailing the findings of any investigations performed by the ethics committee[,]" particularly those conducted since 2001. 2 Board Chairman Mark T. Miller denied the request in its entirety, advising that matters concerning alleged violations of the Code of Ethics must be submitted to the Board in accordance with Section 24 of the Code of Ethics. Thereafter, he explained, "within thirty (30) days of receipt of a proper complaint, the Board of Ethics is required to conduct a preliminary inquiry concerning the allegations." With limited exceptions not applicable in this case, Section 24(c) mandates that "all proceedings and records relating to a preliminary inquiry shall be confidential until a final determination is made by the Board[.]" 3 Relying upon these "requirements of confidentiality," Mr. Miller asserted that all he was permitted to disclose "is that no final determination has been made by the Board regarding any of the individuals/entities named in your request."
Because the Board has acknowledged that a "termination" is a "final determination" in the relevant sense, further discussion of this otherwise critical point is unwarranted in this case. However, the reasoning above is equally applicable to any sections of the ordinance relied upon here, and if any responsive complaints did, in fact, exist, such documents could only be withheld under the Open Records Act until the "allegations contained therein [were] finally resolved or a decision [was] made to take no action." 10-ORD-079, p. 1. In short, "'no statutory basis exists for denying requests for records reflecting final action or the decision to take no action and the complaints from which the final action or decision to take no action 'necessarily stem.'" Id., p. 7.
In response to Managing Editor Mike Moore's expanded request, however, Mr. Miller clarified that Section 4 of the Code defines the persons and entities to which it applies, namely, "the city, its agencies, its officers and its employees." The ordinances "do not and cannot apply to the activities of private citizens," Mr. Miller explained, "and therefore your requests for complaints involving Clay M. Corman, David R. Marshall and Banks Engineering (sic)," identified as items 3 and 4, cannot be honored as the Board has no authority to investigate or sanction private citizens. With regard to items 1 and 2, relating to named members of the Commission and City Attorney Bill Arvin, respectively, Mr. Miller reiterated that "if there were pending complaints which had not progressed to a final determination of the Board, those matters would remain confidential except as otherwise dictated in the ordinance. " 4 Citing Section 24(c) of the Code, Mr. Miller advised the same would hold true with regard to item 5 of the request, seeking "any and all files from investigations involving the aforementioned people should such investigations exist." Mr. Miller explained in reference to items 1 and 2 that, to his knowledge, there have "never been any final determinations by the Board regarding any complaints against any of the named individuals," with "final determination" including "terminations of inquiries as well as public reprimands and the initiation of non-preliminary hearings." No such documentation exists, the Board observed, as "there have never been any complaints made against the named individuals which resulted in a final determination. Additionally, . . . the ordinance itself has time limits within which inquiries and hearings must be dealt." In response to Mr. Moore's claim that the Board has postponed acting on complaints and left matters open indefinitely, Mr. Miller advised that he has been on the Board since May 2005, during which time there have been very few complaints made under the Code of Ethics and "no confirmed violations other than those dealing with failure to timely file financial disclosures." No matters have been "brought to the attention of the Board of Ethics which were not dealt with."
Significantly, the Board ultimately clarified that "final determination, " as used herein, "would include terminations of inquiries as well as public reprimands and the initiation of non-preliminary hearings," but nevertheless confirmed that no responsive documentation exists "because there have never been any complaints made against the named individuals which resulted in a "final determination" ; accordingly, the Attorney General has no basis upon which to find that a violation was committed. Although The Jessamine Journal ultimately supplemented its appeal with a copy of a letter dated October 24, 2011, which identifies alleged conflicts of interest concerning named members of the Nicholasville Planning Commission and Westgate Subdivision, and that letter was apparently read at some point during a Commission meeting, the letter does not establish that complaints alleging violations of the Code of Ethics were actually filed against those individuals. In the absence of a prima facie showing that any responsive complaints were filed, or any objective proof to conclusively refute the Board's position that no responsive complaints (or, by logical extension, files relating to investigations) exist, its disposition of the request(s) at issue must be affirmed in accordance with
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005) and prior decisions of this office.
In his January 13, 2012, appeal on behalf of The Jessamine Journal , Mr. Moore asserted that the Board's disposition of his request "does not conform to the Kentucky Open Records Act because the [Board] has failed to acknowledge the existence or nonexistence of any complaint covered by the requests." 5 Upon receiving notification of the appeal from this office, Mr. Miller reiterated that "there have never been any complaints regarding the individuals named in the request which have resulted in a final determination, " and that "final determination" was defined in the Board's January 11, 2012, response "as including termination of inquiries as well as public reprimands and the initiation of non-preliminary hearings." Mr. Miller also correctly observed that his January 11 response "states there are no records in existence which fit the newspaper's request . . . There are no such records to turn over. We cannot produce something that does not exist." In closing, the Board also reaffirmed that "[t]here are no records relating to any of the specifically named individuals concerning 'old' complaints." 6
Because the Board ultimately advised The Jessamine Journal that no responsive complaints or documentation exist, and explained why (lack of authority over private citizens and no complaints filed to prompt investigation of named city officials), the Attorney General finds no error in the agency's final disposition of its request in the absence of any objective proof that complaints were actually "brought against" the named city officials. The Jessamine Journal has not cited any statute, regulation or case law that would mandate creation or maintenance of such records on the facts presented. Our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute," 01-ORD-36, p. 2, nor is the Attorney General "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. The Board cannot produce that which it does not have nor is the Board required to "prove a negative" under existing law.
As the Attorney General has consistently recognized, a public agency cannot produce nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. Rather, the right of inspection 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 in affirmatively indicating that no such records exist, following a reasonable search, as the Board has consistently maintained here. This office has expressly so held on many occasions. 04-ORD-205, p. 4; 99-ORD-98; 11-ORD-081.
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, 7 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 currently exist and that are in the possession or control of the public agency to which the request is directed; however, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the records being sought after KRS 61.8715 took effect on July 15, 1994.
In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), public agencies must offer some explanation for the nonexistence of the requested 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); 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame). When, as in this case, a public agency denies that any such records exist, and the record supports rather than refutes that contention, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 11-ORD-091.
The Board now finds itself in the position of having to "prove a negative" in order to conclusively refute The Jessamine Journal's claim that responsive complaints (and related investigations) exist.
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005). The Kentucky Supreme Court has recognized that "allowing public agencies to avoid judicial review by denying a record's existence . . . remove[s] accountability from the open records process," but further acknowledged that public agencies may be unreasonably burdened with "the unfettered possibility of fishing expeditions for hoped-for but nonexistent records . . . " if required to "prove a negative" in order to refute a claim that certain records exist, "presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives." Id. at 341. Addressing this dilemma, in Bowling the 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." 8 Id. 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 responsive documents in the absence of a prima facie showing that documents 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. The sole document provided in support of The Jessamine Journal's position raises legitimate questions and concerns regarding potential conflicts of interest, but is devoid of any reference to actual complaints against members of the Commission or the City Attorney, the only individuals of those named over whom the Board has authority, or investigations, both of which The Jessamine Journal apparently believes resulted therefrom. 9
This office recently noted that "a record's existence can be presumed" at the administrative level "where statutory authority for its existence has been cited or can be located." The Jessamine Journal has not cited any objective proof or persuasive authority in support of its argument. In order to ensure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective," Bowling at 341, this office further held that "the existence of a statute, regulation, or case law directing the creation of the requested record" creates a rebuttable presumption of the record's existence, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4. No such authority has been cited or independently located here nor have facts been presented from which existence of the records in dispute can be presumed. Because The Jessamine Journal "has produced no affirmative evidence, beyond mere assertions, that the agency possesses such records as [it] has requested, we do not have a sufficient basis on which to dispute the agency's representation that no such records exist." 09-ORD-214, pp. 3-4; see 07-ORD-033 (requester failed to cite any specific legal authority directing the creation of the record and independent research disclosed no requirement that such a record exist). Compare 11-ORD-074 (holding that "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" and the agency failed to rebut the presumption).
On this question, the analysis contained in 07-ORD-188 and 07-ORD-190 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. In the absence of the requisite prima facie showing, or any evidence to suggest that such records were created or maintained in this case, the agency's denial of The Jessamine Journal's request must be affirmed 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 Board "essentially hav[ing] to prove a negative" in order to refute The Jessamine Journal's largely unsupported claim that responsive documents exist. 07-ORD-190, p. 7.
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:
Mike MooreMark T. Miller
Footnotes
Footnotes
1 The Jessamine Journal referenced the Freedom of Information Act (FOIA); however, this office has long recognized that FOIA "has no force as to state records, only the records of a federal agency." 96-ORD-244, citing OAG 91-56. Although not entirely clear from the record on appeal, the Board's December 7, 2011, response, which is untimely under KRS 61.880(1) (mandating public agency response within three business days of receiving a request under the Kentucky Open Records Act) , was issued nearly a month later, presumably in reliance on the relevant provision(s) of FOIA, which allows federal agencies a longer period of time in which to issue a response.
2 On January 6, 2012 (request mistakenly dated 2011), Managing Editor Mike Moore reiterated the original request, also clarifying that his expanded request was being made under the Kentucky Open Records Act, and should include "[a]ny and all files from investigations invol[v]ing the aforementioned people, should such investigations exist." The Board responded within three business days of receiving this request on January 11, 2012.
3 In 09-ORD-170, this office analyzed the propriety of the denial by the Joint Board of Ethics of the Cities of Bardstown, Fairfield and the County of Nelson, Kentucky, of a request for all documents relating to an ethics complaint filed against certain Bardstown city employees. This office concluded that relevant provisions of the Open Records Act prevailed over conflicting provisions of the city ordinance, which mirrors the ordinance relied upon here, holding as follows:
Joint Board of Ethics violated the Open Records Act in denying request for all records generated in subject investigation of alleged violations of local Code of Ethics, which did not proceed to a "final determination, " on the bases of KRS Chapter 11A, which is not applicable in this context, and the city ordinance which, in relevant part, mirrors it and conflicts with the Open Records Act, under which a decision to take no action or "terminate" the investigation is final action. A city cannot by ordinance make records confidential or exempt from public inspection unless the particular records come under one of the exemptions from mandatory public inspection provided in KRS 61.878(1).
09-ORD-170, p. 1; see 09-ORD-184 (reaffirming that in this context a "'termination' does constitute a 'final determination, '" and that records relating to a terminated investigation are subject to inspection under the Open Records Act if they are adopted in whole or in part as the basis of that action or decision to take no action[,]" and holding that, as in 09-ORD-170, the Board improperly relied upon KRS 61.878(1)(l), KRS 11A.080(2) and (3), and local ordinances because KRS 11A.080 has "no application to city and county codes of ethics, and local ordinances are of no legal effect to the extent they purport to override the unambiguous policy supporting the Open Records Act" ).
4 Because no responsive complaints exist in this case, the Attorney General does not make a finding on the propriety of this assertion, but instead refers the parties to note 3 for guidance.
5 To the extent the Board failed to affirmatively indicate that no responsive complaints or documentation existed in the December 7, 2011, response to Ms. Butler's request, as Mr. Moore correctly observed, the Board violated KRS 61.880(1). It appears that any confusion resulted from the Board's initial failure to clarify that a "termination" is a "final determination. " Because the parties are both familiar with existing precedent(s), including 11-ORD-209, which Mr. Moore cited in his appeal, this office will not unnecessarily belabor the point, but instead refers the parties to 09-ORD-019, a copy of which is attached hereto and incorporated by reference, and reminds the Board that "[i]f a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4.
6 With regard to the Board's adamant position that "until and unless a Court of competent jurisdiction invalidates Nicholasville Ordinance Division 5 § 2-134(c), the Board of Ethics remains bound by the ordinance, " this office refers the Board to note 3, above, and the authorities referenced therein. Additionally, this office again respectfully declines to render a decision regarding a hypothetical scenario notwithstanding the Board's preemptive assertion that " if there were any pending complaints to the City of Nicholasville Board of Ethics which were still in the preliminary inquiry state, those records would remain confidential until a final determination were to be made by the Board." (Emphasis added.) See note 3.
7 See KRS 61.8715.
8 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."
9 The letter is signed by Elizabeth E. Darby, who apparently represents R.J. Corman Real Estate, LLC "which is an adjoining property owner to the property owned by RCCB, LCC and being proposed for development as Westgate Subdivision." Ms. Darby identifies the various professional and financial connections of Commission members Shawn Murphy, Richard Collins, and Danny Frederick with related entities/ individuals, which it perceives to be conflicts and requests that each of those members "refrain from participating or voting on any matters relating to the development of Westgate Subdivision." The letter also requests that "all members of the Commission disclose any financial or personal connections to the applicants that could reasonably raise an issue about the effect on his or her participation, vote, decision or other action taken within the scope of his or her public duties[.]"