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 Graves County Fiscal Court met its statutory burden of proof in partially denying Robert Brown's December 2011 request for records relating to the "Fancy Farm Sidewalk Project: Project Number 2007-1, Phase 1." The fiscal court's failure to produce records responsive to twelve of Mr. Brown's fifteen part request, without explanation, constituted a procedural and substantive violation of the Open Records Act.
On December 13, Mr. Brown requested copies of records relating to the sidewalk projects identified as follows:
1. List of responding bids and bid results;
2. Contract with successful bidder;
3. Bid documents submitted by successful bidders, including non-collusion certification, certification of bid proposal, bid form listing, itemized unit pricing, and total bid price;
4. Bid bond (bid proposal guaranty) or bid bond method of successful bidder;
5. Successful bidder's (guaranty) performance and payment bond or method of guaranty;
6. Successful bidder's insurance certificates incidental to contract;
7. Add/change (deviation from specifications) documents authorized during the contract;
8. Liquidated damages assessment;
9. Extended contract to install additional sidewalks at a later date;
10. "Certified payroll" for all employees of the general contractor and subcontractor;
11. Personnel roster for general contractor and subcontractor identifying positions and relating to certified payroll definitions for pay scale;
12. "Phase 2" contract documents;
13. Roster of official personnel with authority over project;
14. General contractor's "close out documents" for the project;
15. Complaint log for the project.
On December 19, Graves County Judge/Executive Tony Smith, in whose office the bid opening occurred on March 24, 2009, and who was identified as the "contract compliance office," mailed Mr. Brown "all documents that we have copies of for the Fancy Farm Sidewalk Project." Judge Smith provided Mr. Brown with documents responsive to requests 1 and 3, and partially responsive to request 9, but did not provide him with documents responsive to his remaining requests or any explanation for the agency's inability to do so. Subsequently, Mr. Brown initiated this appeal. 1
In supplemental correspondence directed to this office, Judge Smith confirmed that the fiscal court "forwarded all documents we had in our possession" to Mr. Brown on December 19, 2012. Continuing, he observed:
It is my understanding that in the middle of this project the Chief Engineer, Mr. Larry Davis, passed away. At that time the Kentucky Department of Transportation Engineers Mr. Jason Looper and Mr. Everette Wilson assumed the engineering responsibility of this project. Also, Mr. Mark David from the Purchase Area Development District was the Administrator of this grant.
Judge Smith offered no other explanation for the paucity of records produced.
Because Judge Smith did not dispute his status as contract compliance officer or indicate that the bid opening did not occur in this office, and because the explanation he offered concerning the death of the project engineer did not fully explain the fiscal court's inability to produce bid and contract records, this office requested additional information from him pursuant to KRS 61.880(2)(c) on August 24, 2012. To date, we have received no response to these questions. Because the fiscal court is statutorily assigned the burden of proof in sustaining its actions, per KRS 61.880(2)(c), and the record on appeal contains an inadequate explanation for the paucity of records produced, we find that the fiscal court failed to meet that burden in partially denying Mr. Brown's request.
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.
(Emphasis added.) In construing this provision, the Attorney General has frequently observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [found at KRS 61.872(6) and requiring clear and convincing evidence to support denials based on unreasonably burdensome requests,] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof.
95-ORD-61, p. 5 (emphasis in original) cited in 96-ORD-206; 99-ORD-36; 04-ORD-031; 05-ORD-167. Moreover, the Kentucky Court of Appeals has declared:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996).
Although the fiscal court offered more than a "bare assertion relative to the basis for denial," it failed "to provide [the] particular and detailed information" contemplated by KRS 61.880(1). The fiscal court had three opportunities to comply with KRS 61.880(1): by responding to Mr. Brown's original request with particular and detailed information, by amplifying on its position in response to this office's notification of receipt of Mr. Brown's appeal, and by fully answering the questions tendered by this office under our KRS 61.880(2)(c) authority. The fiscal court failed to do so. Accordingly, the record on appeal is largely silent on the fiscal court's inability to honor twelve of Mr. Brown's fifteen requests.
Past decisions of this office recognize that "the 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 rebuttal." 11-ORD-074, p. 2. The agency can overcome this presumption by explaining why the record does not exist. Clearly, Kentucky law governing public procurement and prevailing wage contemplates the creation and proper management of records responsive to Mr. Brown's request. Unfortunately, the only explanation offered by the fiscal court for its inability to produce those records is inadequate because it does not address records relating to the bid process and contract compliance. In Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011), Kentucky's courts declared 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. " 2 Under the rule announced in Eplion , the Graves County Fiscal Court must provide Mr. Brown with a written explanation for the nonexistence of records responsive to his twelve remaining requests. 3 Until it has done so, its duties under the Open Records Act will not be fully discharged.
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 BrownTony SmithJohn R. Cunningham
Footnotes
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