Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Mark Wilson initiated this appeal challenging the inaction of the Gallatin County Fiscal Court in response to his August 7, 2014, request to exercise his "right to inspection of public records retained by the Gallatin County Fiscal Court[.]" Specifically, Mr. Wilson requested:
1. Names of the person(s) whom filed a complaint against placement of Mark Wilson's campaign sign on county property located in Glencoe.
2. Names of person(s) whom determined the removal of Mark Wilson's campaign sign on county property located in Glencoe.
3. Names of the person(s) whom ordered county employees to remove Mark Wilson's campaign sign on county property located in Glencoe.
Having received no response, Mr. Wilson initiated this appeal by letter also dated August 7, but received in this office August 17. Mr. Wilson stated that as of August 14, the date on which he apparently mailed his letter of appeal, the Fiscal Court had not issued a response to his request. A public agency has three days, excluding weekends and holidays, in which to issue a written response upon receipt of a request made under the Act per KRS 61.880(1). Mr. Wilson mailed his request on Thursday, August 7, and mailed his letter of appeal on Thursday, August 14. On appeal the Fiscal Court advised that his request "was denied . . . ," without specifying the date on which its response was issued or providing a copy. Even assuming the Fiscal Court actually received Mr. Wilson's request on Friday, August 8 (and Monday, August 11, seems equally as likely), the Fiscal Court was not statutorily required to mail a written response until Wednesday, August 13 (the third business day after it received the request). If the Fiscal Court did so, Mr. Wilson would not necessarily have received its response by the next day, August 14. Mr. Wilson failed to allow time for mail delivery before initiating his appeal. However, if the agency did not mail its written response within three business days of receiving his August 7 request, it violated KRS 61.880(1). Inasmuch as the record on appeal does not contain sufficient evidence for this office to conclusively resolve a factual dispute concerning the actual delivery and receipt of Mr. Wilson's request, and the delay, if any, was minimal, further discussion is unwarranted. See 13-ORD-055.
Early on, this office clarified that "[t]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; 04-ORD-144. For this reason, the Attorney General has consistently held that requests for information as opposed to requests for public records, "need not be honored." 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080. In addressing this question, the Attorney General has long recognized that "obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. " 04-ORD-080, p. 13 (citation omitted). Public agencies are not required under the Act to gather and supply information independent of that which is set forth in public records. Id. "The public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information." Id.
Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id. p. 5, OAG 91-12, p. 5. A review of the statutory language upon which these decisions are premised, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records ") (emphasis added), validates this position. In other words, the Fiscal Court is not statutorily required to honor a request which is properly characterized as a request for information, such as that of Mr. Wilson. However, the analysis does not end there. "While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5; 14-ORD-073. (original emphasis). Accordingly, the Attorney General has consistently noted that when a requester is unable to identify the records sought for inspection with adequate specificity, or wishes to extract information which has not already been compiled, he "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. " 98-ORD-17, p. 10, citing OAG 76-375, p. 3. In short, "public agencies are normally required, in lieu of honoring requests for information, to make any non-exempt public records that may contain the information being sought available for onsite inspection. " 1 14-ORD-073, pp. 5-6. In this case, however, the Fiscal Court has confirmed that no records it possesses contain the requested information and explained why.
The Attorney General has consistently recognized that a public agency cannot provide a requester access to nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. Nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005) ("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"); 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring agency to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074). A public agency's response violates KRS 61.880(1), when 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 certain records do not exist and explaining why, following a reasonable search, as the Fiscal Court did here. This office has expressly so held on many occasions. 04-ORD-205, p. 4; 12-ORD-056.
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; 13-ORD-073. KRS 61.880(2)(a) narrowly defines our scope of review. Nevertheless, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the record(s) in dispute in 1994 when the General Assembly enacted KRS 61.8715 , pursuant to which "public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740]." In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), public agencies must offer some explanation for the nonexistence of the records at a minimum. See 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" ); 04-ORD-075; 12-ORD-195.
On appeal the Fiscal Court advised that Mr. Wilson's first request was denied as the agency "received no complaints from any individuals regarding Mark Wilson's signs on property in Glencoe. Accordingly, there are simply no records responsive to this request." The Fiscal Court further noted that "the sign Mr. Wilson is referring to, was actually placed by him on a Department of Transportation right-of-way, not county property as alleged in the request." In addressing Mr. Wilson's second request, Assistant Gallatin County Attorney Corey T. Gramm explained that the Fiscal Court "made no determination with respect to Mr. Wilson's sign. Accordingly, there are no records responsive to this request. Finally, there is no record naming a person or persons who ordered Mr. Wilson's sign to be removed." Rather, the Department of Transportation made the determination to remove Mr. Wilson's sign, he continued, as it was located on a right-of-way. County employees removed the sign and returned it to Mr. Wilson as a courtesy, because the Department's policy is to destroy campaign signs that it removes from right-of-ways. "Simply stated," Mr. Gamm concluded, "there are no records in the possession of this Agency responsive to Mr. Wilson's request. His open records request is likely more appropriately directed to the state agency responsible for highway right-of-ways. "
Pursuant to KRS 61.872(4), "[i]f the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. " The Fiscal Court has confirmed that it does not possess or maintain the records being sought, and notified Mr. Wilson that any such records would be in the custody of the Department of Transportation in partial compliance with KRS 61.872(4); however, the agency did not provide Mr. Wilson with contact information for that agency. To this extent, its response was deficient. See 09-ORD-029; 11-ORD-137; 13-ORD-016. Inasmuch as the Fiscal Court is not required to produce that which it does not have, and has provided Mr. Wilson a written explanation for the reason it lacks possession of the records in dispute, the Fiscal Court's denial of Mr. Wilson's request is otherwise affirmed in accordance with governing legal authority. Either party may appeal this decision by initiating action in the appropriate circuit court under 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 WilsonKen McFarlandCorey T. Gamm
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