Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Stanton Consulting, LLC, whose sole member, organizer, and registered agent is Joey F. Stanton, 1 violated the Kentucky Open Records Act in denying James L. Deckard's July 20, 2012, request for copies of the following: 1) Any and all contracts between Stanton Consulting LLC, and the Commonwealth of Kentucky, a Kentucky county, city, or other local government entity, obtained through a public competitive procurement process, between April 1, 2011 and July 19, 2012; 2) Any and all documents received from or sent or given to Carter County Judge/Executive Charles Wallace and/or the Carter County Fiscal Court, or persons acting on their behalf, from July 1, 2011 to July 19, 2012; 3) Any and all documents relating to Joey Stanton as an employee of the Office of the Carter County Judge/Executive, including but not limited to a position as "part-time temporary assistant," from July 1, 2011 to July 19, 2012; 4) Any and all correspondence (with attachments) from or to Loren Carl, U.S. Marshal for the Eastern District of Kentucky, between July 1, 2011 and July 19, 2012; and 5) Any and all invoices, bills, statements of account, warrant requests, and/or travel expense reports issued or produced by Stanton Consulting, LLC, from July 1, 2011 to July 19, 2012. In a timely written response, Mr. Stanton "respectfully declin[ed]" to honor the request because he did not believe the Open Records Act applied to him. Mr. Deckard initiated this appeal by letter dated August 8, 2012, noting that Mr. Stanton "was recently identified [by Judge Wallace] as an employee of the Office of the Carter County Judge/Executive -- a 'Part Time Temporary Assistant'" and that Stanton Consulting, LLC "appears to derive all of its revenue from state or local authority funds that are paid outside the public competitive procurement process, including payments made to Stanton Consulting, LLC for work performed by Mr. Stanton" 2 referenced in the exhibits attached to his appeal.
Upon receiving notification of Mr. Deckard's appeal from this office, Mr. Stanton supplemented his original response, initially reiterating that he does not believe that he is "a 'public agency' under the Open Records [Act]." Mr. Stanton further explained that he was "hired as a temporary employee of Carter County Judge Executive Charles Wallace to assist him in the review of the Carter County Jail operation along with consideration of possible participation in a regional jail with adjacent northeastern Kentucky counties." Because Mr. Stanton is a resident of Grayson County, he "was paid mileage expenses (at the state rate) for related travel for the work performed. " All of his invoices, Mr. Stanton advised, "were submitted for approval and authorization of payment to the Carter Fiscal Court prior to payment." In June, the Fiscal Court hired Mr. Stanton "to assist the Fiscal Court on jail related issues." He is being paid "on an hourly basis on this arrangement" and time sheets have been submitted "and payments made for the work." 3 Referencing the contentious and ongoing nature of issues regarding the proposed Northeast Regional Jail Authority, and noting that "in the course of providing services to Carter County I have been personally attacked publicly in a manner that has adversely affected my ability to make a living in my profession," Mr. Stanton emphasized that he has "nothing to hide" and has "done nothing wrong." Because it has become clear to him "that whatever decision is made" by this office "that this action will continue," rather than "continue with this review" Mr. Stanton has "determined that it is in his best interest to provide what records" he possesses "that are responsive to Mr. Deckard's request."
In his August 15 letter to Mr. Deckard, a copy of which Mr. Stanton included with his appeal response, Mr. Stanton advised that no such records exist in addressing items 1 and 4 of the request. Mr. Stanton identified the records provided in response to Item 2 as:
Financial statements of Carter County Fiscal Court 2011 & 2012, jail canteen information, and a projected budget of Boyd and Carter Counties; operating budget of Carter County Jail for fiscal year ending June 30, 2012; operating budget of Carter County Jail for fiscal year ending June 30, 2012; draft of the proposed [interlocal] agreement for the Northeast Regional Jail Authority; Letter dated June 11, 2012 from the U.S. Marshalls [sic] for the Eastern District of Kentucky and the Southern District of West Virginia to Judge Charles Wallace and others; email to Judge Wallace from Ken Deal, USMS, dated June 6, 2012[.]
With regard to Item 3, Mr. Stanton explained that "[w]hatever records relating to such employment are with the Carter County Fiscal Court, I have none in my possession[.]" Mr. Stanton provided "copies of the invoices from Stanton Consulting, LLC for Boyd and Carter Counties for the time in question" to Mr. Deckard in response to Item 5, noting that "[i]t appears" that he already obtained those from another source. By virtue of this disclosure, Mr. Stanton essentially mooted the question of whether he or Stanton Consulting can be properly characterized as a "public agency" within the meaning of KRS 61.870(1)(h); 4 accordingly, this office makes no finding on that issue. See 09-ORD-133 and 12-ORD-010 (copies enclosed) for the relevant legal analysis. 5
In confirming receipt of said records, Mr. Deckard asserted that Mr. Stanton's response "is not inclusive" of all existing responsive documents that are in his possession. For example, Mr. Deckard observed, "Carter County Judge/Executive Charles Wallace responded, in part, to an open records request by letter dated July 3, 2012, with a copy of "a 'projected draft [budget] of Boyd and Carter counties [sic]'" that, according to Mr. Deckard, "was prepared by Joey Stanton/Stanton Consulting LLC." 6 Mr. Deckard attached a copy of Judge Wallace's July 3 letter to his August 28 e-mail, noting that documents referenced in paragraph 3 "were not concurrently included but were later provided after additional inquiry." In further support of his position that Mr. Stanton must possess additional responsive documents, Mr. Deckard also noted that according to Judge Wallace, "before his dismissal on or about August 16, 2012, Mr. Stanton 'was doing a lot of research and reports [on the regional jail] and getting stuff together for us.' See Consultant on jail out in Boyd and Carter, Ashland Daily Independent , August 15, 2012." 7 Based upon the foregoing, Mr. Deckard maintained that Mr. Stanton "has failed to adequately remedy his open records failure." This "omission," he continued, "and the questionable lack of any other records between Mr. Stanton and the Carter County government for which he worked 'strongly suggests the existence of more,' as phrased" by this office in 12-ORD-130 (In re: James L. Deckard/Carter County Fiscal Court, issued July 18, 2012).
Although Mr. Deckard questions the "lack of any other records between Mr. Stanton and the Carter County government," the fact remains that Mr. Deckard has not cited any legal authority that would require Mr. Stanton to create and maintain additional responsive documents, nor does the record on appeal contain any conclusive proof that additional records were actually created or do, in fact, exist. Mr. Deckard relied upon the referenced quotation attributed to Judge Wallace and his July 3 supplemental response to Mr. Deckard's June 26 request, including attachments, namely, three invoices from Stanton Consulting for March, April, and May 2012, a "Travel Expense Report" from Mr. Stanton for two meetings in April 2012, and the "Budget of Boyd/Carter Regional Jail" for the "Fiscal Year Ending June 30, 2013." In 12-ORD-130, the Attorney General reviewed the aforementioned records prior to noting that Mr. Deckard "expressed frustration with the paucity of records produced, insisting that additional responsive records must exist, but could offer no proof of the existence of additional records." Id., p. 4. The Attorney General remains of the view that "the existence of one 'Travel Expense Report' for Stanton Consulting, LLC, strongly suggests the existence of more 'Travel Expense Reports' since the accompanying invoices reflect thirteen trips originating from Leitchfield, Kentucky, in May alone." 12-ORD-130, p. 5. Further, "as a 'part-time temporary assistant' in the Office of the County Judge/Executive, Mr. Stanton's employment surely resulted in the creation of records 'given to' Joey Stanton, [and/or, in this case, "received from or sent or given to" Judge Wallace or the Fiscal Court] such as the requisite federal, state, and local tax forms and payroll records." Id. However, "this office is not empowered to resolve a 'swearing contest' between the parties." 98-ORD-146, p. 6.
"[O]bjections to alleged inaccuracies and omissions in the records disclosed" cannot be resolved in the context of an Open Records Appeal. 10-ORD-178, p. 2; 06-ORD-098; 09-ORD-101. 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. 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. 8 Although the record on appeal once again "strongly suggests" that additional records may, or even should have been created, ultimately the Attorney General has no basis to depart from that position, or the reasoning of 12-ORD-130, here. See also 12-ORD-065.
Even assuming, for the sake of argument/purposes of the instant appeal, that Stanton Consulting derives 25% of the funds it expends in the Commonwealth from state or local authority funds within the meaning of KRS 61.870(1)(h) as recently amended (see note 2), the current dispute "is factual, and not legal, in nature." 06-ORD-266, p. 6. 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 Mr. Stanton 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, 9 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. Having denied that additional responsive documentation exists, Mr. Stanton now finds himself in the position of having to "prove a negative" in order to conclusively refute a claim that additional records exist in his possession.
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 a public agency might 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, 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." 10 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 public records in the absence of a prima facie showing that such records 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. However, 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.
Notwithstanding the legitimate questions or underlying concerns that Mr. Deckard has raised, no such legal authority has been cited nor does the record on appeal contain any irrefutable proof that additional records were created or exist in the possession of Mr. Stanton/Stanton Consulting. As in 12-ORD-130, "the absence of records documenting the relationship between" the Fiscal Court and Stanton Consulting and/or Joey Stanton, "is, simply stated, not actionable in an Open Records Appeal." Id., p. 5. See 12-ORD-065 (appellant reasonably assumed that a "resignation letter" existed in light of statement by public official in a public forum but failed to make a prima facie showing that such a record existed, relying instead on what could "generally be described as conjecture or assumption which, however logical, does not constitute proof"). "Perhaps [additional responsive] documentation should exist, but the Act addresses access to records that do exist." 12-ORD-130, p. 5 (original emphasis). In sum, this office does not have "a sufficient basis on which to dispute [Mr. Stanton'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); 11-ORD-081; 12-ORD-110. 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"). In the absence of the requisite prima facie showing, this office must affirm the disposition of Mr. Deckard's request in accordance with Bowling , above, and prior decisions of this office.
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:
James L. DeckardJoey L. StantonCharles WallacePatrick Flannery
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