Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of Mount Olivet violated the Kentucky Open Records Act in its disposition of Tony Beach's request for copies of city records. Since the City failed to respond in writing and failed without explanation to comply fully with the request, we find that the City committed a procedural violation of the Act.
Mr. Beach's request, submitted in person on July 26, 2012, was for copies of:
1. Meeting minutes from the July 16th, 2012 special meeting.
2. Meeting minutes from the July 23rd, 2012 special meeting.
3. Notifications sent to the county clerk and the Secretary of State pursuant to KRS 118.305(7) for both of the vacated city council seats.
4. Written resignations from both board members that created the two current vacancies.
5. The names of all media that have requested to be notified of special meeting announcements pursuant to KRS 61.823[.]
6. Any notification sent to media informing them to submit a new request to receive special meeting notifications pursuant to KRS 61.823[.]
7. All emails, correspondence, minutes or notes from meetings pertaining to current or future annexation plans.
8. Meeting minutes from any special meetings held that were not advertised during 2011 or 2012.
Mr. Beach states in his appeal letter that he never received a written response to his request, but when he attended a city council meeting on August 6, 2012, he was handed two (2) of the eight (8) requested items without explanation. This office received his appeal on August 9, 2012, and the City of Mount Olivet has not submitted a response to the appeal within the allotted time.
KRS 61.880(1) requires a public agency to respond in writing to a properly submitted request for public records within three (3) business days. The same subsection requires any denial of inspection to be supported by a specific citation to an exception under the law and a brief explanation of how it applies. The City of Mount Olivet neither responded in writing within that time nor gave any legal basis for its failure to provide Mr. Beach with all of the records he requested. We therefore find the City in violation of KRS 61.880(1).
On August 27, 2012, this office received a copy of a letter to Mr. Beach from attorney W. Kelly Caudill, stating as follows:
This letter is in reply to your July 26, 2012 Open Records request. Ruth Ross, City Clerk, indicated to me that she had provided to you all of the information that you requested that is in existence. I will address your request one by one as follows:
1. Meeting minutes from July 16, 2012 special meeting -- none
2. Meeting minutes from July 23, 2012 special meeting -- attached
3. Notifications sent to the County Clerk and the Secretary of State pursuant to KRS 118.305(7) for both of the vacated city council seats -- attached
4. Written resignations from both board members that created the two current vacancies -- attached
5. The names of all media that have requested to be notified of special meeting announcements pursuant to KRS 61.823 -- none exist
6. Any notifications sent to media informing them to submit a new request to receive special meeting notifications pursuant to KRS 61.823 -- to my knowledge, none exist
7. All emails, correspondence, minutes or notes from meetings pertaining to current or future annexation plans -- none exist
8. Meeting minutes from any special meetings held that were not advertised during 2011 or 2012 -- none exist as no special meetings were held that were not advertised during 2011 or 2012.
With regard to the purported absence of any documents responsive to certain portions of Mr. Beach's request, a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states do not exist.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by explaining why the agency does not possess the record, we do not believe that this appeal warrants additional inquiries, since we do not have a substantial basis on which to dispute the agency's representation that no such records existed. Cf. Bowling v. Lexington-Fayette Urban County Gov't, 172 S.W.2d 333, 341 n.4 (Ky. 2005) (complaining party has the burden of production in litigation over the existence of a public record). 1 We therefore do not find that a substantive violation of the Act occurred.
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:
Mr. Tony BeachHon. Linda ReedW. Kelly Caudill, Esq.
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