Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in these consolidated appeals is whether the Allen County Fiscal Court and/or the Allen County Building Inspector violated the Kentucky Open Records Act in the disposition of two separate but nearly identical requests made by Deborah Jenkins, Internal Auditor for the City of Bowling Green, on August 12, 2013, and August 27, 2013, respectively. In a letter directed to Allen County Judge-Executive Johnny Hobdy on August 12, Ms. Jenkins requested "to inspect any and all records related to your contract with Glenn Burns, Allen County Building Inspector, as well as inspection records created on the behalf of Allen County from July 1, 2012 to July 1, 2013." On August 22, Gary Mathis, Community Planner, Scottsville-Allen County Planning Commission, advised Ms. Jenkins that Judge Hobdy referred her written request to him for a response. "As a contract employee," 1 Ms. Mathis explained, "Glen[n] Burns serves as the Countys' [sic] Commercial Inspector [and] has served in that role for a number of years as authorized by the Fiscal Court." Allen County permits Mr. Burns to bill each applicant directly, Mr. Mathis noted, and to minimize costs for local businesses "the County does not add any fees." Mr. Mathis attached a spreadsheet "of the contracts undertaken during the time period requested," but advised that "[n]o other records are maintained at the County regarding his activity."
By letter directed to Mr. Burns on August 27, Ms. Jenkins advised that Mr. Mathis had provided her with "a listing of the permit numbers which were issued over the past fiscal year," i.e., the referenced spreadsheet, a copy of which was attached. She then asked to "inspect any and all records related to your contract with Allen County as well as all inspection records including any documented dates and times of those inspections conducted on the behalf of Allen County from July 1, 2012, to date." Having received no written response, Ms. Jenkins initiated appeals challenging the disposition of both requests by letter dated September 24, 2013. 2 Ms. Jenkins noted that Mr. Burns had verbally advised her by telephone that "he did not maintain any such records and that approvals granted by him were verbal." She had since learned from the Kentucky Department of Housing, Buildings, and Construction that the Kentucky Building Code "requires inspectors to maintain a number of records related to their approval of projects and the resulting inspections. " Mr. Burns is "the agent for Allen County," 3 she correctly observed, "and it appears unreasonable that during his work as the Allen County Building Inspector that he would be unable to produce any records related to my request."
Upon receiving notification of Ms. Jenkins' appeal from this office, Allen County Attorney William P. Hagenbuch, Jr. responded on behalf of Judge Hobdy/the Fiscal Court, noting "it appears that her complaint is directed at the failure to respond by Mr. Burns." However, to the extent Ms. Jenkins is challenging the response of the Judge-Executive, Mr. Hagenbuch asserted, "[i]t should be noted that he filed a response in a timely manner. The Judge/Executive's duty is only to provide those records which exist and are maintained by the county. This was done." By letter dated October 4, Mr. Burns advised that he was enclosing a "report of all permits that were issued for Allen County, Kentucky from July 1, 2012 through the current date, printed from electronic format. Also find a list of all inspections made since May 2013." Mr. Burns regretted "that any additional inspection records prior to that date were on a laptop that crashed. The person who worked on the laptop computer stated that the computer was not repairable and it was disposed of." He attached the written statement of a Bob Campbell attesting to that fact. Mr. Burns advised that any building plans or additional correspondence "can be viewed at my office by appointment during my office hours." However, some building plans were "lost" when his basement flooded in June 2013; most of those "were larger plans from State jurisdiction jobs and the State has the official set of record[s]."
Neither the Fiscal Court nor the Building Inspector can produce nonexistent records for inspection or copying; however, the lack of available documentation raises possible records management and retention issues which necessitate a referral to the Kentucky Department for Libraries and Archives, consistent with KRS 61.8715, for additional inquiry as that agency deems warranted. KDLA has confirmed as much. To the extent Allen County failed to establish an effective system for ensuring proper management and retention of such records it subverted the intent of the Open Records Act within the meaning of KRS 61.880(4). See 10-ORD-130.
By undated letter (received on October 23), Ms. Jenkins acknowledged that "neither Allen County nor their contractor Mr. Burns report having the records that I requested. The Attorney General's Office cannot make them provide records which do not exist." Under the circumstances presented, she inquired, "who is responsible to have and retain such records" in accordance with the Kentucky Building Code and the Kentucky Department for Libraries and Archives Records Retention Schedules? According to her independent research and interviews, the following records are supposed to exist somewhere:
Kentucky Building Code (2007 current edition)
Section 103.6 Applications and permits (building official shall receive)
Section 103.7 [Notices and orders] (building official shall issue)
Section 103.8 Inspections (proof of inspections or acceptance of written reports by approved agencies or individuals)
Section 103.11 [Department] records -- (building official "shall keep official records of applications received, permits and certificates issued, fees collected, reports of inspections, and notices and orders issued.")
Ms. Jenkins also cited Sections 105.3 Application for permit, 105.7, Placement of permit, 106.3, Examination of documents, 109.1 through 109.3.10 Final inspection, 110.3, Certificate (of occupancy) issued (must contain 12 items of information), 113.2, Issuance (of a Stop Work Order)(shall be in writing), and 121.5, Accounting (requires code official to keep an "accurate account of all fees collected....").
Before addressing the merits of the substantive question presented, this office reminds Allen County of its obligation to comply with the procedural and substantive provisions of the Open Records Act, regardless of the requester's identity or purpose in requesting access to the records. 4 More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency " shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision..." (Emphasis added.) When construing the mandatory language of this provision, the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996).
By its mandatory and unambiguous language, KRS 61.880(1) requires public agencies to issue a written response within three business days of receiving a request. In general, public agencies cannot postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d, 1035, 1041 (9th Cir. 1999). As the Attorney General has frequently noted, this is a "fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1)." 01-ORD-140, p. 3. Failing to issue any written response upon receipt of Ms. Jenkins' August 27 request, as Mr. Burns did here, constituted a procedural violation of the Act, specifically KRS 61.880(1), as did failing to respond within three business days of receiving her August 12 request as the Judge-Executive (or the individual responding on his behalf) did. See 11-ORD-001 (a "message left on an answering machine does not satisfy KRS 61.880(1)" nor does a telephone call). Further, the belated response issued on behalf of the Judge-Executive/ Fiscal Court was directed to Ms. Jenkins via e-mail. The Attorney General has found that the requester and the agency "may enter into an express agreement, or consent by a clear course of conduct 5 to transact their open records business by email." Accord, 03-ORD-162; 09-ORD-224. No such agreement, or course of conduct, existed between Ms. Jenkins and the County. This office has recognized that KRS 61.880(1) "does not specify the method of transmission by which an open records response must be communicated. Compare KRS 61.872(2) (application to inspect public records "shall be hand delivered, mailed, or sent via facsimile to the public agency" )." 98-ORD-167, p. 5; 13-ORD-082. Nevertheless, the Attorney General has concluded, "the phrase 'notify in writing' is commonly understood to mean to give notice by committing words to paper and transmitting them by ordinary means of communication, i.e., by mail. This office finds no authority in the statute, express or otherwise, for an agency[] discharging this duty by e-mailing the response in lieu of a standard written response. " 98-ORD-167, p. 5; 13-ORD-082.
As the Attorney General has long recognized, a public agency cannot produce nonexistent records or those which it does not possess. 6 07-ORD-190, p. 6; 06-ORD-040. Nor is a public agency required to "prove a negative" in order to refute a claim that certain records exist. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005)( holding "that before a complaining party is entitled to such a hearing [to refute the agency's claim], he or she must make a prima facie showing that such records do exist"); see also 07-ORD-188; 12-ORD-087; compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring 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" ); 11-ORD-074 (recognizing 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 rebuttable"); 12-ORD-195. In other words, the right of inspection attaches only if the record(s) being sought is "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. With regard to statutory obligations of a public agency upon receipt of request for nonexistent records generally, the analysis contained in 13-ORD-024, is controlling; a copy of that decision is attached hereto and incorporated by reference.
A public agency's response violates KRS 61.880(1), if it fails to advise the requesting party whether the requested records exist, with the necessary implication being that a public agency discharges its duty under the Open Records Act in affirmatively indicating that such records do not exist (following a reasonable search) and explaining the reason for the nonexistence of the records. See 98-ORD-154; 04-ORD-205. 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. KRS 61.880(2)(a) narrowly defines our scope of review. Nevertheless, the intent of the Open Records Act has been statutorily linked to the intent of KRS Chapter 171 and the Attorney General thus began applying a higher standard of review to denials based upon the nonexistence of the records being sought after KRS 61.8715 took effect on July 15, 1994.
Pursuant to KRS 61.8715, public agencies are required "to manage and maintain [their] records according to the requirements" of the Open Records Act, KRS 61.870 - 61.880, and the State Archives and Records Act, KRS 171.410 - 171.740, in order "to ensure the efficient administration of government and to provide accountability of government activities. . . ." 94-ORD-121, p. 8. In addressing the "essential relationship" between these chapters, the Attorney General has further observed:
Until July 15, the State Archives and Records Act, codified at KRS 171.410, tracked a parallel path to that of the Open Records Act. Those paths now converge. Under the provisions of the Archives and Records Act, "[t]he head of each state and local agency shall establish and maintain an active continuing program for the economical and efficient management of the records of the agency." KRS 171.680. The agency's program must provide for:
Among the duties imposed on the agency head by operation of these provisions, he must "establish such safeguards against removal or loss of records as he shall deem necessary and as may be required by rules and regulations issued under authority of KRS 171.410 to 171.740." KRS 171.710. These safeguards include "making it known to all officials and employees of the agency that no records are to be alienated or destroyed except in accordance with law, and calling attention to the penalties provided by law for the unlawful removal or destruction of records." KRS 171.710
In enacting KRS 61.8715 the General Assembly recognized that the intent of the Open Records Act, to provide full access to public records, was essentially related to, and would be promoted by, efficient records management. This, of course, is the intent and purpose of the State Archives and Records Act. Subversion of the intent of the Archives and Records Act thus constitutes subversion of the intent of the Open Records Act. If a public agency fails to discharge its statutorily mandated duty to establish effective controls over the creation, maintenance, and use of records, and to make known to all of its officials and employees that no records are to be destroyed except in accordance with the law, the agency subverts the intent of the Open Records Act by frustrating full access to public records.
94-ORD-121, p. 8-10; 07-ORD-234. In sum, "the key to records access is effective records management." Id., p. 10.
Given the statutorily recognized interrelationship between records management and records access, the record on appeal raises an issue regarding the records management and retention practices of Allen County insofar as the Judge-Executive/ Fiscal Court apparently permitted the Building Inspector to maintain all "inspection records" offsite and neither the Fiscal Court nor the Inspector ensured that adequate safeguards were in place to avoid loss or destruction of the originals, maintain copies, etc . As a result, most of the documentation that would otherwise exist and be publicly accessible is not available. Pursuant to KRS 171.420, the State Archives and Records Commission is authorized to "review and approve schedules for retention and destruction of records submitted by state and local agencies. " Additionally, the Commission is charged with the duty to "establish standards for the selective retention of records of continuing value," and the Department for Libraries and Archives with the duty to "assist state and local agencies in applying such standards to records in their custody. " KRS 171.530.
Of particular significance, the Commission exercised this authority in creating the Local Agency Records Retention Schedule , Series L5361 of which governs the retention as well as the disposition of "Inspection Reports," which may contain "the address of the structure, type of construction, type of inspection, date of inspection, narrative of inspection, list of violations, results of inspection, name of inspector, signature of inspector and if there are inadequacies" what steps must be taken to remedy them. Inspection Reports must be retained for three years and should then be destroyed. Generally speaking the inspecting agency maintains the official copy of these reports and the best practice is for a building inspector to provide a copy to a county official/agency, i.e., the judge-executive, fiscal court, or planning and zoning commission. Neither the Judge-Executive nor the Building Inspector directed Ms. Jenkins per KRS 61.872(4) to a different local agency in whose custody such records might reside. However, Ms. Jenkins did reference authority, including the applicable records retention schedule(s) generally, and the Building Code, both of which suggest, and in some instances require, that certain records were or should have been created and maintained.
To satisfy its burden of proof under KRS 61.880(2)(c), a public agency must fully explain why it cannot produce the records being sought and under what authority the records were destroyed, if appropriate. 11-ORD-104, p. 5. Loss or destruction of a public record(s) creates a rebuttable presumption of records mismanagement. Id. See 10-ORD-130; 11-ORD-104. Allen County has not rebutted that presumption here. A public agency "should not be able to rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request." Commonwealth v. Chestnut, 250 S.W.3d 655, 665 (Ky. 2008); see 09-ORD-054. Ultimately, this office cannot afford Ms. Jenkins the relief that she seeks relative to copies of the requested inspection records. The Attorney General is not empowered to declare the inability of the Fiscal Court and/or the Building Inspector to produce nonexistent records a violation of the Open Records Act or to compel either agency to create or maintain records for a specific period of time. Inasmuch as the latter prerogative resides with the KDLA and the Archives and Records Commission, the Attorney General respectfully defers to these entities on the issues presented. See 10-ORD-230; 11-ORD-001; 11-ORD-051. Further justification for this referral stems from the apparent failure of the Building Inspector to notify the KDLA under the mandate of KRS Chapter 171, by submission of a records destruction certificate, when records were lost or destroyed as the result of his laptop crashing and his basement flooding.
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:
Deborah JenkinsJohnny HobdyGlenn BurnsGary MathisWilliam D. Hagenbuch, Jr.
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