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 City of Lebanon Junction did not violate the provisions of KRS 61.870 to 61.884 in the disposition of Mark E. Shumaker's December 17, 2013, request for "all ordinances and resolutions pertaining to the Lebanon Junction Fire Department from January 1, 1980, to December 1, 2013."
The city responded to Mr. Shumaker one day after receipt of his request, providing him with four responsive records: Ordinance No. 14-9, Ordinance No. 95-7, Ordinance No. 2005-11, and the mission statement of the Lebanon Junction Fire Department. Shortly thereafter, Mr. Shumaker initiated this appeal asserting that he "was not given all open records as [he] already had a few in [his] possession which were omitted from records [he] received." He noted that his earlier inspection of the city's book of ordinances revealed that "many had been removed from the book as ordinance numbers and dates were out of sequence and missing."
In correspondence directed to this office after Mr. Shumaker initiated his appeal, City Attorney Mark E. Edison explained that all responsive records in the Lebanon Junction Ordinance Book were disclosed to Mr. Shumaker and that unless Mr. Shumaker provides "copies of the documents he states he has in his possession that the city clerk did not furnish, it is impossible to know what Mr. Shumaker is claiming he was not furnished." We agree.
The City of Lebanon Junction complied with KRS 61.880(1) by issuing a timely written response to Mr. Shumaker's request and providing all responsive records that could be located. Absent information concerning the records to which Mr. Shumaker refers in his letter of appeal, this office is not equipped to resolve a dispute between the city and him that is based on his unsubstantiated assertion that additional records exist but are being concealed. See
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005) (holding that "[i]n order to refute a complaining party's claims to a nonexistent record, the agency would essentially have to prove a negative, presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives"); OAG 89-81, p. 3 (recognizing that the Attorney General could not, "with the information available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted and those sought but not provided"). We therefore affirm the City of Lebanon Junction's disposition of Mr. Shumaker's request.
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:
Mark E. ShumakerJames SweatMark Edison