Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in these consolidated appeals is whether the Harrison County Fiscal Court or Harrison County Animal Control Officer Allen Fryman violated the Open Records Act in the disposition of Kenneth Arkenau's records requests. On November 12, 2014, Mr. Arkenau hand-delivered a request to Harrison County Judge/Executive Alex Barnett for the "name of [the] person that reported Ken Arkenau for abuse of horses [on] November 5, 2014." Judge Barnett responded to Mr. Arkenau's request on November 14, advising him that "there is no[] written record of the person who instigated the call . . . ." On January 22, 2015, Mr. Arkenau hand-delivered a request to Mr. Fryman for:
. . . Copies of all records of possible violation of KRS 525.130.
Date 5 Nov 14
Complaint made on Ken Arkenau
Complainant: Allen Fryman ACO
Received by: Shane Mitchell KDV 1303
Mr. Fryman did not respond to Mr. Arkenau's request. Mr. Arkenau thereafter initiated this open records appeal.
In his letter of appeal, Mr. Arkenau indicated that he has "good reason to believe that [Judge Barnett's] response is not true, or that at some point on or prior to 14 November 2014 the record was destroyed because of [Mr. Arkenau's] interest in same." Judge Barnett responded that, upon receipt of the open records request, he contacted Mr. Fryman who advised him that the complaint was made by telephone and "there was no report filed on the case." Continuing, Judge Barnett noted that the matter was referred to the Department of Agriculture which investigated the complaint and found no infraction. Judge Barnett acknowledged that Mr. Fryman later advised him that the complainant's name may have been jotted down on "a 'post-it' note, then thrown away," but continued to insist that there is "no file with the name of the accuser on it. "
On February 19, Harrison County Attorney Bradley K. Vaughn expanded on Judge Barnett's supplemental response. He stated:
The same request was sent on the same date, by the same appellant to Alex Barnett, Harrison County Judge Executive. 1 Mr. Arkenau was given a response by the County Judge's Office in a timely manner. A copy of that response has been attached to a letter sent to your office by Alex Barnett, Harrison County Judge Executive.
The Harrison County Animal Shelter is not a separate agency or entity from the Harrison County Fiscal Court. Allen Fryman is an employee of the Harrison County Fiscal Court/Harrison County Judge Executive. All real estate, records, bank accounts, etc. are the property of the Harrison County Fiscal Court and are managed and titled in the name of Harrison County. As such, the Harrison County Judge Executive consulted with all relevant employees (primarily Allen Fryman) about the facts of Mr. Arkenau's request and the existence of any records which must be disclosed. As the Animal Shelter is not a separate entity from Harrison County it is our opinion that the response given on November 14, 2014 covers the request by the County and a separate response by an individual employee is not necessary. If one is required it would read exactly as the November 14, 2014 response, as Allen Fryman was the employee primarily consulted by the County Judge Executive in preparing said response.
Mr. Vaughn also expressed the view that Judge Barnett's original response "was appropriate in that no written record is in the possession of Harrison County (including the Animal Shelter) which contains the name of the person who requested a welfare check on the animals. "
We affirm the Harrison County Fiscal Court's denial of Mr. Arkenau's request on the basis of the nonexistence of a responsive record. Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005). Mr. Arkenau's November 12 request, which he hand-delivered to Judge Barnett, was a request for information which the fiscal court was not obligated to honor. See, e.g., 12-ORD-096. He asked for the "name of [the] person that reported him on November 5, 2014," not the complaint or other record identifying the person who made the allegations. The fiscal court nevertheless treated his request as if it were properly framed, conducted a search using the method most likely to produce the record sought, and promptly notified Mr. Arkenau that its search yielded no results. 11-ORD-031, p. 3 citing 95-ORD-96, p. 7 (recognizing that a public agency must "make a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested"); 03-ORD-063, p. 5 citing 02-ORD-144, p. 3 (recognizing that "an agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms").
On occasion the existence, or presumed existence, of a public record is established by prima facie evidence, but the record cannot be produced. This would be the case if, for example, a statute or regulation requires the creation of a record and the agency denies its existence or cannot account for it. On these occasions, "the agency may be called upon to prove that its search was adequate," City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 848, n. 3 (Ky. 2013), or provide "a written explanation for [the record's] nonexistence. " Eplion v. Burchett, 354 S.W.3d 598, 603 (Ky. App. 2011). Mr. Arkenau's unspecified "good reason to believe" that the record containing the name of the complainant "was destroyed because of [Mr. Arkenau's] interest in same" does not constitute a prima facie showing of the existence of such a record. We affirm the fiscal court's denial of his request and find that it has no duty to document the search undertaken to locate the record, beyond that which it already provided, or explain its inability to produce it. Compare 11-ORD-036 (enclosed).
Whether the Harrison County Animal Control Officer discharged his duties under the Open Records Act is a closer question. The record on appeal confirms that Mr. Arkenau hand-delivered a request to Mr. Fryman on January 22 for copies of "all records of possible violation of KRS 525.130 on a particular date involving particular individuals." Neither Mr. Fryman nor the fiscal court responded to that request. Mr. Arkenau's second request was not identical to his first request and was, in fact, properly framed as a request for a record and not as a request for information. Mr. Fryman presents no proof that Judge Barnett is official custodian of records for the animal control office or officer per the requirements of KRS 61.870(5) and KRS 61.876(1) (defining the term "official custodian of records" and requiring public agencies to adopt and post rules and regulations identifying, among other things, "[t]he title and address of the official custodian of the public agency's records"). 2 Mr. Arkenau's January 22 request was submitted to a different county officer/public agency at a later date and identified particular record or records the existence of which has not been denied. It is incumbent on Mr. Fryman, or the official custodian of the records of the animal control office or officer, to immediately conduct a search for any records relating to Mr. Arkenau and his alleged violation of KRS 525.130 on November 5, 2014, 3 and advise him, in writing, of the findings. Until he, or the official custodian, has done so, the agency's duties under the Open Records Act will not be fully discharged.
Either party may appeal this decision 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.
Footnotes
Footnotes