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 Oldham County Fiscal Court violated the Kentucky Open Records Act in the disposition of Bobbi Nelson's undated request for eighteen (18) categories of "documents, correspondence, emails and data" generally relating to Oldham County Emergency Management Services and the Oldham County Ambulance Taxing District, only three of which currently remain at issue. 1 Following a lengthy series of correspondence between this office and the parties, during the course of which both parties were provided with ample opportunity to set forth any evidence or legal arguments, it has become clear that many, and perhaps most, of the questions or concerns of the "OCEMS Employee Committee" on whose behalf Ms. Nelson is acting, simply cannot be resolved in the context of an Open Records Appeal. This office "cannot order an agency to create records, or declare its failure to do so a subversion of the intent of the Open Records Act. " 96-ORD-139, p. 2; see 10-ORD-195. Having carefully reviewed the record in its entirety, and in light of existing legal authority, this office has no basis upon which to find that the Fiscal Court violated the Act; rather, the agency cannot produce nonexistent records for inspection or copying nor is the agency required to "prove a negative" in order to conclusively refute a claim that responsive documents exist aside from those ultimately provided in response to Items 1, 4, and 8 as ultimately clarified on appeal.
Ms. Nelson initially described the aforementioned items of the request as follows:
1) All agreements, written documentation and emails relevant to Oldham County EMS or OCATD between any of the following: Dr. Tom Pope, Judge Executive David Voegele, John Black, Stan Clark, Oldham County Fiscal Court, Kentucky Retirement Systems and the Kentucky Board of EMS; including written or verbal agreements between any of the following: Stuart Crawford, Oldham County EMS, Dough Johnson, Judge Executive David Voegele, Fiscal Court or County Government[,] including contracts or agreements entered into on behalf of OCEMS dated July 1, 2010, to present.
4) Each and every email correspondence between Oldham County Fiscal Court Government relevant to OCEMS and/or OCATD and: Stan Clark, Dr. Tom Clark, Doug Johnson, Dr. Tom Pope, Shelley Maxwell, Keith Smith, Judge Executive David Voegele, or John Black, including contracts or agreements entered into on behalf of OCEMS dated July 1, 2010, to present.
8) All written documentation or emails between Jim Carman and: Judge Executive David Voegele[,] John Black, Stan Clark, Oldham County Fiscal Court, Stuart Crawford, Kentucky Retirement Systems and the Kentucky Board of EMS, including contracts or agreements entered into on behalf of OCEMS dated July 1, 2010, to present.
The Fiscal Court initially denied access to each item because it was "not the repository" for the records, complying was deemed unreasonably burdensome per KRS 61.872(6), and/or the request "facially constitute[d]" a request for information. Although the Fiscal Court failed to fully comply with KRS 61.872(4) in referring Ms. Nelson to OCEMS for some records, failed to establish with "clear and convincing evidence" that complying would place an unreasonable burden on the agency within the meaning of KRS 61.872(6), as construed in Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008), and improperly argued that "written documentation constitutes information and is not required to be produced unless specifically described," Ms. Nelson ultimately clarified the specific documents being sought in subsequent correspondence. Inasmuch as the Fiscal Court ultimately produced any existing documents responsive to her clarified request, a lengthy analysis of the substantive arguments initially raised is unwarranted. 2
In her January 5, 2012, letter of appeal, Ms. Nelson explained in reference to Item 1 that when Judge Voegele "made Crawford interim director, Voegele stated in a meeting with OCEMS employees that he had a signed letter of resignation from Crawford just in case this appointment didn't work out." It was, according to Voegele[,] signed, not dated and laying on his (Voegele's) desk." The purpose of Item 1, Ms. Nelson continued, "was to obtain the letter and any other agreements Voegele had with Crawford" in addition to "agreements made by Voegele with Dr. Tom Pope, Medical Director, to withdraw the KBEMS complaint against Crawford [and] Doug Johnson, County Maintenance Director, for improvements made to South EMS building that was purchased with cash reserves without a real estate agent, attorney or building inspector." Ms. Nelson also clarified that Item 4 of the request was intended to encompass "[a]ny correspondence between Voegele or Fiscal Court and OCATD approving County Maintenance Department to correct building and fire code violations of the South EMS building, including the State Fire Marshal's inspection reports and the County building inspector's reports." Mr. Johnson, she continued, "specifically told me the judge ordered the repairs and OCEMS will have to pay them back as soon as they get some money." Finally, with regard to Item 8, Ms. Nelson essentially questioned the qualifications of Interim Director Jim Carman, noting that "[m]any changes were implemented based on his report to the board" and he "later replaced Crawford as interim director." According to Ms. Nelson, he "was never approved as interim director by OCATD" nor was the "report" made available.
Upon receiving notification of this appeal, Judge Voegele explained that "[h]ad Ms. Nelson made the specific request for records that she has identified" at Item 1 of her appeal, the Fiscal Court's response "would have been no such records exist. There is no letter of resignation from former interim director Stuart Crawford." When hired, the Fiscal Court explained, Mr. Crawford "gave his assurance that if asked to resign as director he would do so. After several months on the job, when it became apparent that the behavior of some employees was making his leadership tenuous, Judge Voegele asked Mr. Crawford to resign and he did so immediately." If a letter of resignation was referred to, "it was meant to be an allegorical description, as a manner of speaking, rather than literal." Judge Voegele explained that "Mr. Crawford understood he was on a 'short leash' when hired, was named interim director indicating temporary, and resigned without objection when asked." In short, all existing documents responsive to Item 1 were provided. Similarly, the Fiscal Court observed that Item 4 as described on appeal differed from Item 4 of the original request; however, no such records exist. "When certain building and fire code violations became apparent at South Oldham EMS," the Fiscal Court explained, "Judge Voegele ordered the county maintenance director to investigate the problems, determine the cost of repair, and initiate corrections, hiring outside assistance as required, while using county personnel to the greatest extent possible to reduce expenses." In sum, "[t]here is no written correspondence between Judge Voegele and Oldham County EMS regarding the work" and the request "was fully complied with." With regard to Item 8, the Fiscal Court asserted that its original response "was and remains appropriate" because it "is not the repository for these records." Correctly observing that Ms. Nelson's appeal "clearly indicates that she received the information to which she refers from OCEMS," the agency reiterated that Item 8 was complied with.
In reply, Ms. Nelson asserted that Mr. Crawford and Judge Voegele "made several references to the 'signed letter of resignation' on the Judge's desk that merely needed to be dated," and that Mr. Crawford "made many references to this 'letter' in his first few weeks as interim director, not only to me, but also to many of the employees." With regard to Item 4, Ms. Nelson explained that the building "is owned by OCEMS; it is not a county building. Therefore, some correspondence between Judge Voegele, [the Fiscal Court], county maintenance officer and OCEMS (or OCATD) must exist for the County Maintenance Office to make the repairs AND for the cost for those repairs to be reimbursed to the County." In her view, "[t]here should also be an inspection by the [C]ounty citing violations and approving the repairs/ corrections" and "a copy of the State Fire Marshall's original investigation and the County Building inspection before and after repairs/ corrections." (Emphasis added.) Finally, in reference to Item 8, Ms. Nelson observed there is "no evidence that OCATD approved or appointed this director" or approved his "exorbitant salary, " nor is there any evidence "of a search for a permanent director." With Item 8 she "had hoped to find a paper trail between Jim Carman and Judge Voegele" demonstrating that Judge Voegele asked for the resignation and then appointed Mr. Crawford, etc. (Emphasis added.)
Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, and to assist us in reaching a correct resolution of the instant matter, this office asked Judge Voegele to address the specific issues raised in relation to Items 1, 4, and 8 in Ms. Nelson's reply letter. Judge Voegele initially noted that Ms. Nelson's January 30, 2012, letter "may suggest responsive documentation may or arguably should have been created," but argued that it does not relate back to her original request. 3 With regard to Item 1, Judge Voegele reiterated the Fiscal Court's earlier position, reaffirming that all existing responsive documents were provided. In addressing Ms. Nelson's assertion(s) regarding Item 4, Judge Voegele correctly observed that Ms. Nelson "assumes certain documents may exist and by implication we did not provide records requested[.]" However, the documents ultimately described, he noted, were never actually requested. A building inspection, Judge Voegele correctly asserted, "is not a contract or an agreement." The County did not inspect the property as Ms. Nelson assumed; rather, the Board "requested that the State make the inspection so no possibility of undue influence by the Judge Executive" would exist or could be alleged. The Fiscal Court nevertheless enclosed "a copy of the cover letter . . . and the Field Inspection Report." Judge Voegele also included the October 5, 2011, Board meeting minutes "showing a report from Keith Smith, [D]eputy [D]irector of OCATD, showing that this matter was handled by OCATD not [the Fiscal Court]. Also, invoices were sent to and paid directly by OCATD for work performed. Those invoices and the "original inspection" were also disclosed. Reiterating that none of these records are "written contracts or agreements," nor were they "entered into by [the Fiscal Court] on behalf of OCATD," Judge Voegele explained that he asked the Fiscal Court Maintenance Director to "provide assistance to OCATD" regarding this issue and the invoices reflect that "the bulk of the work was contracted out and performed by an independent contractor who was directly paid by OCATD." Correctly arguing that Ms. Nelson "again assumes that certain documents exist and that [the Fiscal Court] and/or Judge Executive David Voegele executed those documents," the Fiscal Court nevertheless attached the "minutes of the Directors [sic] Meeting on May 3, 2011," in response to Item 8 as revised.
In support of her belief that a "signed letter of resignation" existed, Ms. Nelson subsequently provided four anonymous letters from individuals who attended the May 2, 2011, meeting at the John Black Center in Buckner, KY, and "heard or have heard Mr. Crawford make reference to this letter in the weeks to follow." 4 Ms. Nelson again questioned why the letter to which Judge Voegele referred would not still exist, suggesting that it was either lost, destroyed, or is being willfully withheld. 5 Similarly, Ms. Nelson acknowledged that some items of her original request were not framed with adequate specificity, but continued to emphatically question the content of the additional records provided in response to items 4 and 8 and raise various related questions, all of which are, in sum, beyond our narrow scope of review under KRS 61.880(2)(a), which does not authorize this office to conduct investigations, gather evidence, interview witnesses, etc.; rather, the Attorney General "shall review the request and denial and issue . . . a written decision stating whether the agency violated provisions of [the Open Records Act] ." See 09-ORD-186.
"In rendering a decision under the Open Records Act, the Attorney General is not concerned with 'heroes and villains.'" 93-ORD-15, p. 6; 07-ORD-179, p. 7. Rather, in the "final analysis, we assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his[/her] request, and from the official custodian in providing the records which satisfy the request." Id.; 07-ORD-190. Further, this office has consistently recognized that "it is not, in general, within our statutory charge to resolve questions of fact or to otherwise act as a trier of fact." 09-ORD-120, p. 4. When viewed in light of these principles and existing legal authority, the record on appeal validates the Fiscal Court's position. Because the Fiscal Court ultimately advised Ms. Nelson that no additional responsive documents exist aside from those ultimately provided in response to Items 1, 4, and 8, and provided a plausible explanation of why, this office finds no error in the agency's final disposition of her written request in the absence of any irrefutable proof that such documents were created to begin with. 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 this office "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. Moreover, when some of the documents requested are disclosed, this office has generally declined to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 4. 6 This office has no basis to depart from that position here.
As the Attorney General has consistently recognized, a public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Rather, 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 in affirmatively indicating that certain records do not exist following a reasonable search, as the Fiscal Court ultimately asserted here. This office has expressly so held on many occasions. 04-ORD-205, p. 4; 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, 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 disputes arising under the Open Records Act are therefore generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record (s), and, if so, whether the record(s) 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. See 00-ORD-120. When, as in this case, a public agency denies that any responsive documents exist beyond those already provided, and the record is devoid of evidence to refute that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9.
Having denied that additional responsive documentation exists, the Fiscal Court now finds itself in the position of having to "prove a negative" in order to conclusively refute Ms. Nelson's repeated claims that a "resignation letter" exists and her assumption that further documentation responsive to Item 4 must or should have been created. As the Fiscal Court aptly noted, Ms. Nelson does not deny receiving documents in response to Item 8, albeit from OCEMS; rather, the various allegations that she makes regarding their content and Mr. Carman's salary, etc., as well as the lack of additional documents, confirm that she did, in fact, receive certain documents. Although she "hoped to find a paper trail" between Mr. Carman and Judge Voegele, that fact does not render the agency's denial improper. "The Attorney General is not empowered to ? resolve non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17. 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." Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005).
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., 07-ORD-188; 08-ORD-189; 11-ORD-209; 12-ORD-012. Notwithstanding her arguably legitimate concerns, the fact remains that Ms. Nelson failed to make such a showing here, relying instead on what can generally be described as conjecture or assumption which, however logical, does not constitute proof. Judge Voegele has not denied that he may have verbally referred to a "resignation letter," for instance, but has repeatedly explained that any such reference was not intended to be taken literally. The written statements provided merely confirm that Judge Voegele referred to such a letter in a public forum, rather than establish its existence, and he ultimately provided a plausible explanation for the casual statement relied upon. Although Ms. Nelson's assumption was reasonable in light of that verbal statement, no proof has been offered to refute his denial that no such letter was ever created.
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." 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. Ms. Nelson has not cited any objective proof or persuasive authority in support of her position that additional documents not only should, but must have been created, and thus are being improperly withheld. On appeal the Fiscal Court provided a credible explanation for the lack of documents presumed to exist relative to Items 4 and/or 8. No authority to the contrary has been cited or independently located here.
Because Ms. Nelson "has produced no affirmative evidence, beyond mere assertions, that the agency possesses such records as [she] 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 ("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"). Simply stated, "this office is not empowered to resolve a 'swearing contest' between the parties." 98-ORD-146, p. 6. In the absence of the requisite prima facie showing, the Fiscal Court's denial of Ms. Nelson's request is affirmed in accordance with Bowling , above, and prior decisions of this office such as 07-ORD-188 and 12-ORD-012. To hold otherwise would result in the Fiscal Court "essentially hav[ing] to prove a negative" in order to refute Ms. Nelson's claim(s). 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:
Bobbi NelsonDavid Voegele
Footnotes
Footnotes
1 In her January 5, 2012, letter of appeal, Ms. Nelson focused on the agency's response to items 1, 4, 8, 10, 11, 13, 14, and 18 of the request, with only items 1, 4, and 8 requiring full discussion. Because Ms. Nelson was provided with any existing documents responsive to items 13 and 14 (resumes, "including work history, salary and qualifications," of Stan Clark and Jim Carman, respectively, as well as their job descriptions and related contracts or agreements) after she initiated this appeal, the related issues are moot per 40 KAR 1:030, Section 6, notwithstanding the related questions that she may still have regarding the salaries of those individuals or the value of information contained in the records, etc. Ms. Nelson does not dispute that she ultimately received any existing documents responsive to item 10 of the request ("all correspondence and advertisements relating to the sale or donation of any Oldham County equipment after January 1, 2011[,]" to specifically include "the bid announcement and bid proposals for the sale of vehicles and the donation and sale of mattresses") from OCEMS which, as the Fiscal Court noted initially and on appeal, it does not possess, implicitly relying upon KRS 61.872(4) in referring her to OCEMS, the custodial agency. Issues relating to item 10 are thus moot as well regardless of any lingering questions which are not justiciable in this forum. While Ms. Nelson's point is well-taken regarding the agency's initial refusal to comply with Item 18 by providing records available in electronic format per KRS 61.874(2)(a) based upon a misconception that "for the purpose of compliance with the Open Records Act, hard copies are necessary," it suffices to say that related issues were ultimately resolved. This office trusts that the Fiscal Court is now fully cognizant regarding application of KRS 61.874.
With regard to item 11 (a copy of "all Kentucky Revised Statutes that provide for the county judge executive, Fiscal Court or Board of Directors to control or direct operational issues of [OCEMS]"), the Fiscal Court properly declined to perform legal research or give a legal opinion. The Attorney General has construed the definition of "public record" codified at KRS 61.870(2) to exclude reference materials, including statutes, administrative regulations, and case law. Acknowledging that such materials may technically qualify as "public records" due to being "in the possession of or retained by a public agency, " this office nevertheless concluded that disclosure of such materials "would not enable the public to monitor public agency operations or serve any purpose which underlies the Open Records Act, " so they could not be characterized as "public records" within the scope and meaning of the Act. 99-ORD-35, p. 4. Further, "public agencies are not obligated to conduct research by locating relevant statutes and regulations concerning the subject of a request in order to satisfy that request." 08-ORD-114, p. 7.
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2 The Fiscal Court may wish to review 11-ORD-084 for a thorough analysis regarding application of KRS 61.872(6) and the kind of detailed information required to satisfy the clear and convincing evidentiary standard of that exception. With regard to requests for information, which public agencies do not have to honor, this office refers the parties to 09-ORD-106. "While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (original emphasis). The Fiscal Court partially mischaracterized the request in this regard. Lastly, in order to fully comply with KRS 61.872(4), the Fiscal Court was required to provide Ms. Nelson with "the name and location of the official custodian" of the public agency which maintains the records for which the Fiscal Court is not the "repository. "
3 Although Judge Voegele is correct in this assertion, further discussion is unwarranted in light of the agency's ultimate denial based on the nonexistence of such records.
4 The CD recording also provided, which purportedly contained an audio recording of Judge Voegele referring to such a "letter" during the May 2 meeting, actually contained only electronic versions of the aforementioned written statements. Because such a recording would, at best, only serve to confirm that Judge Voegele made such a statement, which neither he nor the Fiscal Court has denied, as opposed to conclusively refuting his explanation of the verbal statement or the agency's position that no such letter was ever created, the omission of the audio file does not alter the legal analysis or the outcome of this appeal.
5 If Ms. Nelson has evidence that the Fiscal Court willfully concealed or tampered with public records, she may wish to consider the options available under KRS 61.991(2)(a), but such issues cannot be resolved in this forum and the record on appeal is devoid of any evidence of such wrongdoing. See 11-ORD-056 (Open Records Act does not give OAG "general investigatory powers" nor can evidence of willful concealment be reviewed in this forum).
6 Likewise, questions relating "to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3 (reporter questioned the validity of invoices produced in response to request; the Attorney General advised that the relief sought was unavailable under the Act); 05-ORD-008.
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."