Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Michael Woodford initiated this appeal challenging the disposition of his January 7, 2015 request for "all oaths of office for the Board & firefighters including the officers" and the "signed [Proof of Receipt] of Your Duty Under the Law and Managing Government Records for the last five years." 1 Having received no response to his request(s), Mr. Woodford initiated this appeal by undated letter, which this office received on January 23, 2015. This office issued a Notification to Agency of Receipt of Open Records Appeal on January 27, 2015, advising that any response on behalf of the District must be received on or before February 2, 2015. Having received no written response addressing the requests which prompted the instant appeal, this office contacted legal counsel for the District. By facsimile transmission dated February 11, 2015, following a series of e-mails between the parties and this office, counsel provided this office with copies of certain responsive "Proof of Receipt" forms dated December 3, 2012, 2 but did not provide all such forms that should exist; 3 counsel also faxed copies of the requested oaths and confirmed that said copies were forwarded to Mr. Woodford on February 16, 2015, in partial satisfaction of his request. Inasmuch as the District ultimately provided Mr. Woodford with copies of all responsive oaths, any issues regarding those records are moot per 40 KAR 1:030, Section 6, and our analysis will focus exclusively on issues regarding the requested Proof of Receipt forms. 4
As a public agency, the District is obligated to comply with the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) contains the guidelines for agency responses to requests made thereunder. In relevant part, KRS 61.880(1) provides that each public agency, upon receipt of a request made under the Open Records Act, "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request 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." In applying this provision, the Attorney General has consistently observed:
"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). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1). Contrary to [the agency's] apparent belief, the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
Additionally, we note that in OAG 92-117 . . . this office made abundantly clear that the Act "normally requires the agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request." OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented." OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 82-300, p. 3 . . . .
01-ORD-140, pp. 3-4 (original emphasis); 06-ORD-147; 07-ORD-179; 10-ORD-201.
The District is required, as a public agency, to have a mechanism in place to ensure the timely receipt and efficient processing of requests made under the Act. Notwithstanding the extenuating circumstances that may have partially impeded the ability of the District to comply in this instance, 5 a "public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act. " 02-ORD-165, p. 3; see 94-ORD-86; 09-ORD-091; 14-ORD-026.
As in 01-ORD-140, 07-ORD-179, 10-ORD-199, and 11-ORD-035, this office must conclude that in failing to issue a written response of any kind to the subject request within three business days of when it was received, and failing to provide any existing responsive documents, the agency violated KRS 61.880(1). The agency did not invoke KRS 61.872(5) nor did it cite a statutory exception that justified withholding the records in whole or in part as required under KRS 61.880(1). Inasmuch as the District delayed access until February 11, 2015, after this appeal was initiated, the Attorney General must conclude that Mr. Woodford did not receive "timely access" to records eventually provided. Absent from the agency's belated appeal response is any reference to KRS 61.872(5); also lacking is a detailed explanation of which permissible reason for delay applied here. This delay subverted the intent of the Act within the meaning of KRS 61.880(4).
In providing only the 2012 Proof of Receipt forms with no comment or explanation, the District implicitly denied that additional responsive forms existed. This office has consistently recognized that a response by a public agency 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 so indicating. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 12-ORD-162. It was "therefore incumbent on the [agency] to ascertain whether records exist[ed] that [were] responsive to Mr. [Woodford's] request, to promptly advise him of [its] findings, and to release to him all existing [nonexempt] records identified in his request." 03-ORD-207, p. 3. Insofar as the District failed to affirmatively indicate that additional forms were not created, it violated the Act. See 09-ORD-145 (copy enclosed); 10-ORD-137. However, the District cannot be said to have violated the Open Records Act in denying access to nonexistent records.
This office has long recognized that a public agency cannot produce nonexistent records for inspection or copying. 02-ORD-120, p. 7; 04-ORD-205. Although 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, 6 and the Attorney General has applied a higher standard in reviewing denials based on the nonexistence of records ever since KRS 61.8715 was enacted in 1994, 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). More recently, this office noted that "a record's existence can be presumed" at the administrative level "where statutory authority for its existence has been cited or can be located." 11-ORD-074, p. 3.
In order to ensure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective,"
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d. 333, 341 (Ky. 2005), this office further held 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. The Kentucky Court of Appeals approved this approach in
Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011), declaring that when a public agency cannot produce records that are presumed to exist, "the person requesting the records is entitled to a written explanation for their nonexistence. " The District has not offered any explanation for the nonexistence of additional forms that should have been created in the relevant period of time and its response is deficient in this regard. See KRS 61.880(2)(c).
As indicated (see note 2), the Open Meetings Act was amended in 2013 and this office subsequently distributed the written materials required under KRS 15.257(1). The District should have been able to produce signed Proof of Receipt forms acknowledging receipt of those materials by each member of the Board of Trustees per KRS 65.055 in addition to forms that were signed following amendment of the Open Records Act in 2012. Further, counsel for the District advised, in response to an electronic inquiry from this office, 7 that several members have been appointed in the relevant time period to fill vacancies created through resignation or death. Accordingly, the materials would have also been distributed within 60 days of when the new members were appointed if the District had complied with KRS 65.055(1)(b). The District has not asserted that such forms were destroyed, either prematurely or in accordance with applicable retention requirements, 8 presumably because the records were never created. However, the Attorney General is not empowered to declare that a public agency's "failure to create a record constitutes a violation of the Open Records Act. " 99-ORD-140, pp. 5-6; see 12-ORD-110. Accordingly, this office has no basis upon which to find that a substantive violation of the Act was committed notwithstanding the District's apparent failure to comply with KRS 65.055.
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.
Footnotes
Footnotes
1 The Attorney General distributes "written information" explaining the procedural and substantive provisions of the Open Meetings Act, KRS 61.805 through 61.850, and the Open Records Act, KRS 61.870 to 61.884, "together with the information required by KRS 171.223 to be prepared by the Department for Libraries and Archives concerning proper retention and management of records," in accordance with KRS 15.257 "within ninety (90) days of the effective date of any legislation amending the provisions of the Open Meetings Act or the Open Records Act." KRS 15.257 requires distribution to "all county judge/executives, mayors, county attorneys, city attorneys, superintendents of public school districts, presidents of each of the state public postsecondary education institutions . . . , and attorneys of public school districts and public postsecondary institutions throughout Kentucky[.]"
2 On July 12, 2012, KRS 61.870(1)(h) was amended; accordingly, the Office of the Attorney General distributed the written materials. The Office of the Attorney General also distributed the materials after KRS 61.820(1) and 61.840 were amended on June 25, 2013.
3 KRS 65.055 provides:
(1) (a) County judge/executives and mayors, or their respective designees, shall distribute the written information provided by the Office of the Attorney General and the Department for Libraries and Archives under KRS 15.257 and 171.223 to each elected official and each member, whether elected or appointed, of every county and city legislative body, local government board, commission, authority, and committee, including boards of special districts, located within their respective jurisdictions. In the case of a board, commission, or authority created by joint action of a county or city, the county judge/executive and mayor, or their respective designees, shall distribute the written information to the members appointed by their respective jurisdictions. Distribution shall be accomplished within sixty (60) days of receiving the written information from the Office of the Attorney General and the Department for Libraries and Archives. Distribution to newly elected or appointed members shall be accomplished within sixty (60) days of their election or appointment. The distribution may be by electronic means.
(b) The distribution of materials to members who have been elected or appointed after the most recent distribution of materials as required in paragraph (a) of this subsection has occurred shall be accomplished within sixty (60) days of the day their term of office begins. The distribution may be by electronic means.
(2) County judge/executives and mayors shall require signatory proof that each person identified in subsection (1) of this section has received the written information, shall maintain documentation of receipt on file, and shall certify to the Office of the Attorney General that the written information has been distributed as required.
This office has not received any certifications from Mt. Eden during the period from 2010-2015 indicating that said information was distributed as required. "Although not actionable under the Open Records Act, [this] apparent noncompliance with KRS 65.055 constitutes a separate but related statutory violation." 08-ORD-250, p. 5; 13-ORD-074.
4 Mr. Woodford also challenged the actions of the District relative to his January 12, 2015 request "to view and copy of [sic] the mission [s]tatement of the Mount Eden Fire Protection District." Counsel for the District ultimately provided Mr. Woodford with a copy of the requested mission statement; accordingly, the related issues are moot per 40 KAR 1:030, Section 6.
5 The District offered no explanation for its failure to issue a timely written response to either of the requests originally at issue; however, in responding to Log No. 201500028, legal counsel advised that on August 5, 2014, five months prior to said requests, the Station 1 Headquarters "burned to the ground." The District has operated "out of a local garage and old post office" since then. Our understanding is that Mr. Woodford has been permitted to inspect documents responsive to some of his other written requests "at its temporary office at 232 Van Buren Road, Mt. Eden, KY 40046." See letter from counsel dated January 15, 2015, responding to request which prompted Log No. 201500050.
6 See KRS 61.8715.
7 KRS 61.880(2)(c) and 40 KAR 1:030, Section 3.
8 According to Records Series L5836 of the Local Government General Records Retention Schedule , which governs the retention and disposition of the "Open Records Act and Open Meetings Act Information File," the proof or "certificate" of receipt can be destroyed "when person leaves the agency."