Opinion
Opinion By: Jack Conway, Attorney General; Ryan M. Halloran, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Hardin County Attorney's Office violated the Kentucky Open Records Act in denying Richard Leal's October 8, 2013, request for "a copy on DVD of the video during my visit to Ms. Oldham's office on 4 Oct 13 in the afternoon . . . at least 5 minutes before and 5 minutes after an unidentified Hardin County Employee came towards the desk and basically 'flicked' the enclosed documents on the desk." Mr. Leal also challenged the validity of the agency's October 9, 2013, written response advising "that there are no records responsive to your request," and the agency's October 7 response to his October 2 request for the "final payment/voucher or any official document pertaining to" County Attorney Jennifer Oldham's travel voucher from August 22-24, 2012, in response to which six documents were provided. Specifically, Mr. Leal noted that prior written responses provided on behalf of the agency were "on her official Hardin County stationary" and contained her signature; thus, he requested "an OFFICIAL response by the Hardin County Attorney, Ms. Oldham," to his October 2 request. (Original emphasis.) By letter dated October 11, Mr. Leal initiated this appeal, observing that Ms. Oldham's office "has about 4-5 cameras inside" and complaining that its October 9 response to his request for a copy of the specified video recording, like its October 7 response, was not on letterhead nor did it contain her signature. Mr. Leal requested a "thorough independent investigation into Hardin County Government to include the County Attorney's Office."
To begin, a request for this office to investigate demonstrates a fundamental misconception of the Attorney General's narrow scope of review under KRS 61.880(2)(a) . This office is not empowered to conduct investigations, gather evidence, interview witnesses, etc.; rather, KRS 61.880(2)(a) specifically requires the Attorney General to "review the request and denial and issue . . . a written decision stating whether the agency violated provisions of [the Open Records Act] ." See OAG 86-35; 98-ORD-23; 09-ORD-186; 11-ORD-056. Further, this office has consistently recognized that "it is not, in general, within our statutory charge to resolve questions of fact or to otherwise act as a trier of fact." 09-ORD-120, p. 4. The broader concerns and peripheral issues that Mr. Leal raises are not justiciable in this forum as the Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17. KRS 61.880(2)(a) narrowly defines our scope of review in resolving disputes arising under the Open Records Act; our analysis must proceed accordingly. Because the County Attorney's Office cannot produce that which it does not have for inspection or copying, nor is the agency required to "prove a negative" under existing case law in order to refute a claim that a certain record(s) exists in the absence of a prima facie showing, this office affirms the agency's denial of Mr. Leal's October 8 request. A public agency is not required to respond on letterhead or certify its response as Mr. Leal essentially contends; no such requirement exists in the Open Records Act.
Upon receiving notification of Mr. Leal's appeal, Ms. Oldham provided this office with a "timeline and history which outlines, in summary form," the requests made by Mr. Leal, the responses provided thereto, and the related correspondence for the period of June 7, 2012, through October 22, 2013, advising that her office has not required Mr. Leal to pay for copies or postage costs, notwithstanding KRS 61.872, in order to ensure that he receives the records in a timely manner. She correctly asserted that "[t]here is no legal requirement that a response to a request for records be made on official letterhead or that it be signed in ink by an elected official." The agency's October 7 response (provided on October 4) "was provided to Mr. Leal in person at the front counter of my office by my staff. " Ms. Oldham further explained that said response was "on plain paper and indicated that it was from the county attorney's office." The October 9 response was mailed to Mr. Leal, she advised, "in an envelope indicating it was from the Hardin County Attorney's Office. Both indicated in the body what they were in response to and that they were from the Hardin County Attorney's Office. The official custodian of the records requested is the county attorney's office, not Jennifer Oldham." If I were no longer the county attorney, Ms. Oldham correctly observed, "the records would still be maintained by the office and subject to disclosure by my successor." 1
"As you can see from the attachments," Ms. Oldham asserted, most of my responses to Mr. Leal's requests "have been on letterhead and been signed personally by me. However, my responsibilities as county attorney prevent me from continuing to utilize such a large amount of my time to provide a personal response and I have delegated preparation of the legally required response to staff within my office." According to Ms. Oldham, the County Attorney's Office "has always been diligent in providing timely, legally sound and professional responses to Mr. Leal." In return, she has been called "a liar, thief, incompetent, racist, and unpatriotic by Mr. Leal." He typically "insists on hand-delivering his requests and picking up responses in person." In doing so, Ms. Oldham advised, "he is disruptive to the essential functions of my office. He is loud, rude and makes derogatory remarks about me and my staff in order to be heard by other members of the public who are being served in my office." His letters are "repetitive and abusive," Ms. Oldham continued, "and I believe are aimed at harassing me personally rather than a bona fide request for public records. He typically copies all of his correspondence to unrelated public officials and the media, indicating that his purpose is likely harassment rather than satisfaction of a legal right to receive information." Thus far, during the month of October, "there have been 15 work days and 11 letters either from Mr. Leal or to him in response. Some days, multiple trips and mailings are made to my office by Mr. Leal." Much of my work as county attorney, Ms. Oldham asserted, "is now done after hours due to the demands of his repeated requests under Chapter 61 which require me to cease other work to research and respond within the required timeframe."
Ms. Oldham maintained that she has nothing to hide, but her ability to perform the other essential functions of her office has been compromised. Given the "hostility he displays in his communications and personal contacts with the office," Ms. Oldham stated that she is concerned about her safety and that of her staff in dealing with Mr. Leal. Based upon the foregoing, Ms. Oldham requested a determination that her October 4 (dated October 7) and October 9 responses were sufficient under the Open Records Act. In addition, she asked this office to evaluate Mr. Leal's October 17 request and her October 22 response, along with all of the other correspondence provided which, in her view, collectively establishes "that his repeated requests are intended to be harassment and that such have compromised the office's ability to carry out its essential functions under KRS 61.872(6)." It is noteworthy, she concluded, that neither Mr. Leal nor his adult daughter has filed a civil suit regarding the underlying incident of June 9, 2012. Mr. Leal reiterated his prior claims regarding the incident of June 9, 2012, and subsequent events in his October 25 letter of "Rebuttal." In relevant part, Mr. Leal asserted that he was never face-to-face with Ms. Oldham "other than the 3 times at the Hardin County Fiscal Court" - when I have gone to the Attorney's Office "she has never met me or been in the same room." He maintained that he never encountered her in person anywhere in public. Neither she nor her staff has ever told him to leave or calm down, he noted, or called the police. In visiting her office, Mr. Leal asserted, he was "professional but never rude or loud." Mr. Leal believes that Ms. Oldham is "trying to dramatize" the situation relative to being fearful. He "never used profanity." With regard to his requests disrupting other essential functions, Mr. Leal noted that Ms. Oldham has "at least 4-5 clerks so she does not do all the work herself. . . ."
A public agency such as the County Attorney's Office cannot provide a requester with access to a nonexistent record(s) or that which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. 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 no such record(s) exists just as the County Attorney's Office asserted here in denying Mr. Leal's October 8 request for a copy of the specified video recording. On many occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 99-ORD-98. Under the circumstances presented, 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. As previously noted, KRS 61.880(2)(a) narrowly defines our scope of review.
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; 2 however, 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 open records disputes are thus generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested public record, and, if so, whether the record 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. Nevertheless, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the record(s) being sought following the enactment of KRS 61.8715 in 1994.
In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), public agencies must generally offer some explanation for the nonexistence of the record(s) in dispute at a minimum. When, as in this case, a public agency denies that any such record(s) exists, and the record on appeal does not contain a substantial basis upon which to dispute the agency's position, further inquiry is unwarranted. 12-ORD-053, p. 3; 05-ORD-065. This office is "not 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.
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 public agencies may 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, 341 (Ky. 2005). Addressing this dilemma, in Bowling 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." 3 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 records being sought did, in fact, exist in the possession of the agency. See, e.g., 06-ORD-042; 07-ORD-188; 07-ORD-190; 08-ORD-189.
Given the limited evidence of record on the question, this office simply does not have a sufficient basis on which to dispute the agency's representation that no video recording exists in this instance. 09-ORD-214, pp. 3, 4. See 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring KSR to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); see also 11-ORD-118. Compare 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"); 11-ORD-036. The County Attorney's Office cannot produce that which it does not have nor is that agency required to "prove a negative."
Turning our attention to Mr. Leal's other claim, regarding the purported requirement of providing an "official" response, this office again finds no basis upon which to conclude that a violation of the Open Records Act was committed. Although it certainly is common practice, no provision of the Open Records Act requires a public agency to use letterhead when responding to a request per KRS 61.880(1). Rather, KRS 61.880(1) merely provides that a public agency, upon receipt of a request made under the Open Records Act, "shall notify in writing the person making the request, within the three (3) day period, of its decision." Such a response "shall be issued by the official custodian or under his authority , and it shall constitute final agency action ." (Emphasis added.) This office has consistently recognized that a public agency is not statutorily obligated to "certif[y] . . . the appropriate records . . . in such manner that the same may be introduced in a Court of Law . . . ." 03-ORD-207, p. 3; 08-ORD-114. Nor does KRS 61.880(1) require a public agency to "certify" its written response as Mr. Leal has essentially argued. This office must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated.
Stogner v. Commonwealth, 35 S.W.3d 831, 835 (Ky. App. 2000). Further, "it is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there."
Commonwealth of Kentucky v. Gaitherwright, 70 S.W.3d 411, 413 (Ky. 2002), citing Gateway Construction Co. 356 S.W.2d 247 (Ky. 1962). While it may be customary for a signature to appear on a public agency's response, that omission does not render the response(s) in dispute invalid. Someone acting under authority of the County Attorney responded in writing, and within three business days, to Mr. Leal's request(s) using the statutorily authorized method(s) of delivery, and provided any existing responsive records. Nothing else was required from a procedural standpoint.
Inasmuch as both issues which prompted the instant appeal have been resolved in favor of the County Attorney's Office, this office makes no determination as to whether it also provided "clear and convincing evidence" that continuing to comply with Mr. Leal's requests would "place[] an unreasonable burden" on the agency or that his "repeated requests are intended to disrupt other essential functions" of the agency per KRS 61.872(6). Even assuming that Ms. Oldham has not done so yet, a review of the subject correspondence in its entirety suggests that she may be able to successfully build such a case in the future.
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:
Richard LealJennifer OldhamHarry L. Berry
Footnotes
Footnotes
1 See 07-ORD-020 ("Because the requested records belong to the office, and not the office holder, the current jailer is responsible for establishing and maintaining an active, continuing program for the management of the records of the agency he serves that includes those records generated in past administrations."); 08-ORD-059; 11-ORD-051.
2 See KRS 61.8715.
3 Black's Law Dictionary, 1071 (5th ed. 1979), defines prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."