Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Butler County Fiscal Court violated the Open Records Act in the disposition of Robert D. Cron's August 30, 2012, request for copies of "the appraisal of the land and property bought, in partnership with Ohio County, known as the Rochester Ferry." Our review of the record on appeal confirms the procedural and substantive violations alleged.
On August 30, Mr. Cron hand-delivered a written request to Butler County Judge/Executive David Fields for "the document from the Certified State Appraiser, (name), who appraised the land and the property for Butler and Ohio County, the document listing the amount, (dollars), the land was appraised for, and the document showing what each county paid for this land and property." One day later, Butler County Attorney Richard J. Deye notified Mr. Cron that "[t]he entire file concerning the purchase of the Rochester Ferry is available Monday through Friday from 8:00 a.m. until 4:00 p.m.," advising him that "[w]hatever records exist concerning the purchase of the Rochester Ferry should be in the file." 1 Mr. Deye suggested that Mr. Cron make arrangements for inspection with Judge Fields' office in advance to ensure "that the records will be readily available for you when you arrive."
In his letter of appeal, Mr. Cron indicates that he agreed to a five day extension of the statutory deadline to enable the agency "to find the document I had requested," making arrangements with the judge's assistant to inspect the document on September 11, 2012, at 9:00 a.m. Upon arrival, Mr. Cron continues, he was advised that "the Ambulance Board was meeting in the room set aside for me to view the . . . document, and I would have to wait until they finished . . . ." At the conclusion of the board meeting, Mr. Cron indicates he was led into the room, presented with two large folders for inspection, but advised that the agency's search of the folders did not yield the requested appraisal. He maintains that the fiscal court was obligated to produce the requested appraisal, issue written notification identifying the custodian of the appraisal, or issue written notification that the appraisal does not exist.
In correspondence directed to this office after Mr. Cron filed his open records appeal, the fiscal court asserted that its August 31 response constituted full compliance with the statutory requirements, characterizing the remaining allegations as "simply a scheduling issue." 2 Continuing, the fiscal court observed:
The Appeal next seems to address the issue that he did not find the document that he was specifically looking for. The Appeal mentions that [the judge's assistant] looked through the files and could not find the document he requested. Mr. Cron was then afforded the opportunity to look through the files to see if he could find it. Mr. Cron is probably capable of making his own determination whether the documents that he is requesting are located in the file. If [the judge's assistant] could not find it and Mr. Cron could not find it, then Mr. Cron can draw his own conclusions about the existence of the document.
The fiscal court maintained that its goal in providing Mr. Cron with all records relating to the purchase was "to provide full disclosure as contemplated by the Open Records Act, " and lamented that it is "[s]ometimes . . . criticized for not providing enough information and other times . . . criticized for providing too much information." To avoid future open records disputes, the Butler County Fiscal Court should focus on providing the record or records requested or, if no responsive record or records exist, so advising the requester in clear and direct terms.
In 01-ORD-38 the Attorney General determined that a public university violated KRS 61.880(1) by failing to identify records to which access was denied based on their nonexistence and, pursuant to KRS 61.8715, to provide some explanation for the nonexistence of the records. The requester asked for a copy of the university's current contract with Coca-Cola. She received a packet containing "all contracts, payments, requisitions, correspondence, and email between [the university] and Coca-Cola, Inc., for vendor services," including an expired contract and an expired renewal and extension agreement but not including a current contract or extension agreement effective on the date of the request. The university's inability to produce the current contract due to its apparent nonexistence was, we concluded, tantamount to denial of the request "and it was incumbent on the university to so state in clear and direct terms." 01-ORD-38, p. 9 citing OAG 86-38; OAG 91-101; 96-ORD-164; 97-ORD-16; see also 02-ORD-163. Additionally, we determined that the omission of an explanation for the nonexistence of the contract "constituted a substantive violation of the Open Records Act. " Id. at 10. Our conclusion in 01-ORD-38 is dispositive of the issue presented in this appeal.
Mr. Cron "submitted a brief and simple request for the government to make full disclosure or openly assert its reasons for nondisclosure."
Commonwealth v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008) citing
Providence Journal Co. v. Federal Bureau of Investigation, 460 F.Supp. 77, 792 (D.R.I. 1978), reversed on other grounds on appeal, 602 F.2d 1010 (1st Cir. 1979). Producing nonresponsive records did not, in our view, constitute "full disclosure. " Accord, 02-ORD-150 (holding that school system violated the Open Records Act by producing voluminous records, many not responsive to the request, and requiring the requester to sift through the records to locate the record she sought). To hold otherwise would promote agency abuse of the Open Records Act by shifting the burden to requesters to conduct unproductive fishing expeditions through mountains of nonresponsive records in the hope of locating the single record or group of records identified in their requests. Mr. Cron's request implicated one or two records, and it was not incumbent on him to "mak[e] his own determination whether the documents that he [was] requesting [were] located in the file[s]." Instead, it was incumbent on the Butler County Fiscal Court to produce the requested appraisal or to notify him that no appraisal exists.
In
Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011), Kentucky's courts agreed with the Attorney General's position that "when it is determined that an agency's records do not exist, the person requesting the records 'is entitled to a written explanation for their nonexistence. '" Citing 10-ORD-078. 3 In a recent open records decision involving Mr. Cron's request to the Ohio County Fiscal Court for the same appraisal, we advised the fiscal court that it should bear the court's holding in mind in responding to future records requests. 12-ORD-191. Our position that the agency has a duty to provide an explanation for a record's nonexistence has thus been approved by the courts, and we urge the Butler County Fiscal Court to do the same by providing an explanation for the nonexistence of records that are statutorily presumed to exist. 4 See, KRS 67.080(1)(b)1. as construed in 12-ORD-171.
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 Deye
Footnotes
Footnotes
1 Mr. Cron did not acknowledge receipt of Mr. Deye's letter in his September 11 open records appeal.
2 Mr. Cron was not required to make an appointment to inspect the requested appraisal. See 02-ORD-094 (recognizing that conditioning the requester's right to inspect records on making an appointment violates KRS 61.872(3)(a) as an impermissible restriction on records access). Having done so, he could reasonably expect that he would not be kept waiting while a board meeting took place. In our view, this delay was not "simply a scheduling issue" but a violation of the spirit, and perhaps, the letter of the Open Records Act. Taken to extremes, such delays could seriously impede a requester's right of access.
3 Compare Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005) recognizing that a requester is not entitled to be heard on his claim that records actually exist, when he has been denied access to the records based on their nonexistence, absent "a prima facie showing that such records do exist."
4 The court's holding in Eplion notwithstanding, the Attorney General is authorized by KRS 61.880(2)(c) to "request additional documentation from the agency for substantiation" of its denial of a records request. Where a record is presumed to exist by virtue of statute, resolution, or case law, the Attorney General regularly requests that the agency provide an explanation for the nonexistence of a record. 11-ORD-074.