Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Butler County Fiscal Court's response to Robert D. Cron's August 9, 2012, request for "the appraisal of the land bought from Mr. Bratcher" was substantively deficient. Resolution of the issue on appeal turns on the analysis found in 11-ORD-074. A copy of that open records decision is attached hereto and incorporated by reference.
In a timely written response, Butler County Attorney Richard J. Deye notified Mr. Cron that "[t]here are no documents for the appraisal of the land bought from Mr. Bratcher, in partnership with the City of Morgantown and Butler County, in the office of the Butler County Judge/Executive." Shortly thereafter, Mr. Cron initiated this appeal questioning the adequacy of the fiscal court's response. Mr. Cron focused on the fiscal court's failure to comply with KRS 61.872(4). That statute provides that when the agency to which an open records request is directed "does not have custody or control of the public record requested," the agency "shall notify the applicant and shall furnish the name and location of the agency's public records." 1
To facilitate our review of the issue on appeal, and in light of the directive found at KRS 67.080(1)(b)1. that a fiscal court exercising its power to purchase real property "pay no more than the highest appraised value, as determined by a Kentucky certified real property appraiser as defined in KRS 324A.010" unless the purchase price is less than $ 40,000, this office requested clarification from the fiscal court pursuant to KRS 61.880(2)(c). 2 Specifically, we ask that the fiscal court advise us whether the subject property was appraised and, if not, that the fiscal court explain why KRS 67.080(1)(b)1. was inapplicable to the purchase.
In response, Mr. Deye reiterated that the fiscal court "purchased the Bratcher property in conjunction with the City government of the City of Morgantown," but indicated that he could not "state whether or not the Bratcher property was appraised. " He emphasized that "Butler County government is in no way claiming that KRS 67.080(1)(b)1. was inapplicable," but confirmed that "if an appraisal exists the county does not have a copy of it." In closing, he suggested that an appraisal may have been conducted by "other entities involved in the purchase."
In 11-ORD-074, this office analyzed "the dilemma posed when agencies deny a record's existence rather than claiming a statutory exemption as the basis for denial." Although factually distinguishable from the appeal before us insofar as the Butler County Fiscal Court does not unequivocally deny the existence of a responsive record, and has been fully cooperative in responding to our KRS 61.880(2)(c) inquiry, as a practical matter the result here is identical to the result in 11-ORD-074: the requester is unable to access a record whose existence is imported by a statute requiring its creation. At page 2 of 11-ORD-074, we restated the well-established view that "allowing public agencies to avoid judicial [or administrative] review by denying a record's existence . . . remove[s] accountability from the open records process."
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005). To avoid this outcome, and "insure that the Open Records Act is not 'construed in such a way that [it] become[s] meaningless or ineffective,' [ id. ]," we concluded:
The existence of a statute, regulation, or caselaw 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.
11-ORD-074, p. 2. The Butler County Fiscal Court offers no explanation to rebut the presumption that the appraisal exists and can therefore be produced for inspection.
KRS 67.080(1)(b)1. authorizes a fiscal court to:
(b) Sell and convey any real estate or personal property belonging to the county, and buy land for the use of the county, when necessary, for the lawful purposes of the county as provided for in this section and KRS 67.083. The fiscal court may appoint one (1) or more commissioners to sell or buy real estate under this subsection, subject to the approval of the fiscal court, and convey it to the purchaser, under the direction of the court, or have it conveyed to the court, by deed properly executed and recorded.
(Emphasis added.) The Butler County Fiscal Court does not "claim[] that KRS 67.080(1)(b)1. was inapplicable," but can neither deny the existence of the appraisal nor, alternatively, produce the requested appraisal for inspection. Because the record on appeal is devoid of any explanation for the fiscal court's inability to produce the statutorily mandated appraisal, regardless of whether that explanation is that the price of the property was determined through the exercise of the power of eminent domain, that the purchase price was $ 40,000 or less, that the approval was conducted by another agency involved in the transaction, 3 or that the fiscal court did not discharge its duty under KRS 67.080(1)(b)1., we conclude that its response was 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:
Robert D. CronDavid FieldsRichard J. Deye
Footnotes
Footnotes
1 KRS 61.872(4) is clear and unequivocal. If the Butler County Fiscal Court knows in whose custody the requested appraisal resides, it was and is obligated to furnish Mr. Cron with the name and location of the custodial agency.
2 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
3 Under these circumstances, the fiscal court's duties under KRS 61.872(4) would be triggered and the fiscal court would be statutorily obligated to furnish Mr. Cron with the name and the location of the agency that conducted, and maintains a copy of, the appraisal.