Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Leonard Wilson initiated this appeal challenging the disposition by Montgomery County Clerk Judy Long Witt of his August 28, 2014 written request for the "documentation proff [sic] of the advertise [d] candidate filing deadlines for the Jeffersonville City Commissioner and Mayor." In a timely written response, Ms. Witt advised Mr. Wilson that she was enclosing a copy of the "election calendar page from State Board of Elections setting out candidate filing deadline with pertinent KRS citings," a copy of "filing deadlines for nonpartisan mayor candidates, " and a copy of "filing deadlines for nonpartisan city legislative body candidate. " Ms. Witt further advised that county clerks are not required to advertise candidate filing deadlines. On appeal Mr. Wilson relied upon the fact that Ms. Witt has advertised filing deadlines in the past for local races, a practice which, in his view, kept the public informed as to when public officials were running for re-election.
Upon receiving notification of Mr. Wilson's appeal from this office, Assistant Montgomery County Attorney Nikolas M. Fegenbush responded on behalf of the Clerk. Mr. Fegenbush advised that Ms. Witt provided the only documentation potentially responsive to Mr. Wilson's request, and noted that she also informed him that county clerks are not required to advertise candidate filing deadlines. Following Mr. Wilson's August 28 request, Mr. Fegenbush further observed, he sent a second letter dated September 2, which posed a legal question regarding Ms. Witt's written statement that she was not required to advertise the filing deadlines. Although not statutorily required, he correctly advised, Ms. Witt provided a more detailed explanation to Mr. Wilson by letter dated September 5. Based upon the following, this office affirms the agency's disposition of Mr. Wilson's August 28 request.
Public agencies are not required under the Act to gather and supply information independent of that which is contained in existing public records. 04-ORD-080, p. 13 (citation omitted). Rather, "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" ), validates this position. Likewise, this office 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 Act in affirmatively indicating that certain records do not exist, and explaining why, as the Clerk 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. Accordingly, this office has recognized that "objections to alleged inaccuracies and omissions in the records disclosed" cannot be resolved in the context of an Open Records Appeal. 10-ORD-178, p. 2; 06-ORD-098; 09-ORD-101. When some of the documents requested are disclosed, the Attorney General has declined to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 4. 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 ensure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective," Bowling at 341, this office has recognized that "the existence of a statute, regulation, or case law directing the creation of the requested record" creates a rebuttable presumption of the record's existence, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4. 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. Mr. Wilson has not cited any such authority nor has any been located. Nevertheless, the Clerk promptly notified Mr. Wilson that county clerks are not required to advertise candidate filing deadlines and provided him with copies of all existing documents potentially responsive to his request. Nothing else was required. The Clerk's disposition of Mr. Wilson's request is affirmed. 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.