Request By:
Michael Woodford
Doug Herndon
James G. Hodge
Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Summary : Decision adopting 15-ORD-037 regarding application of KRS 61.880(1) and 61.872(5); Mt. Eden Fire Protection District violated KRS 61.880(1) in failing to issue a timely written response to separate requests for certain financial and operational records and subverted the intent of the Act within the meaning of KRS 61.880(4) in failing to provide requester with timely access to responsive documents ultimately provided as the agency did not invoke KRS 61.872(5). The District cannot produce nonexistent records for inspection or copying but its responses were also deficient insofar as the agency failed to affirmatively indicate whether certain records existed until after the appeal was filed.
Open Records Decision
Michael Woodford initiated this appeal challenging the inaction of the Mt. Eden Fire Protection District (District) upon receipt of two requests that he submitted in December 2014. In the first request, which Mr. Woodford mailed on December 3, 2014, he asked to "view and copy as needed any and all documents," including electronic mail regarding the "construction of the proposed Mount Eden firehouse to include board meeting [minutes] , committee meetings [sic] minutes, " as well as the notices and the agendas required for special meetings under the relevant Kentucky Revised Statutes, and "emails and any communications from all board members, firefighters, consultants, Walters Building representative[s], Architects, Engineers, [and the Board's legal counsel]," including messages from personal computers and cell phones or electronic devices, that were faxed, hand-delivered or mailed from August 6, 2014, to December 2, 2014. By separate request Mr. Woodford asked for "a copy of the Mt. Eden Fire District by-laws, Policy and meeting [minutes] reflecting or authorizing of [sic] gifts or awards" in addition to "any and all Award[s], gifts or gift cards paid out of district funds to include copies of meeting [minutes] and checks or reimbursements for the last 3 years." 1 Having received no written response of any kind, Mr. Woodford subsequently initiated this appeal.
Upon receiving notification of Mr. Woodford's appeal from this office, legal counsel for the District ultimately responded on its behalf. Counsel initially advised that on August 5, 2014, the Mt. Eden Fire Protection District Station 1 Headquarters "burned to the ground taking with it all equipment and data including records and files" except for those somewhat preserved in a fire safe or in the possession of the volunteer members. "There is no paid staff or regular office." 2 Since then, he advised, the fire department has "operated out of a local garage and old post office. Under its declaration of emergency, the department has begun the process of re-equipping and re-building." 3 Counsel further noted that the District "has received multiple requests for open records [from Mr. Woodford] and his acquaintances." The District "has struggled to assemble the requested records including most recently the assemblage and filing of all of its minutes and financial records with the Spencer County Clerk from cobbled together remnants of its fire-safe and members' personal records covering from its creation 18 years ago." Counsel observed that his client previously furnished a copy of the material in dispute to Mr. Woodford's "associate on the neighboring North East Nelson Fire Protection District Board and assumed it covered this request. In other words, this request is duplicative." 4 However, counsel advised that he was enclosing a copy of the "duplicative material response to the requester. "
This office did not receive a copy of the agency's belated response to Mr. Woodford. Upon request, counsel provided this office with a copy of the District's January 15, 2015 letter to Mr. Woodford, in which agency counsel advised that he was enclosing "a copy of all data furnished to your North East Nelson Fire Protection District Board associate, Craig Stone, who also submitted this request." Counsel did not explain which records constituted "all data." In addition, the District indicated that it "has no other records of the district which it can furnish that are not the personal records of its members over which the district has no control, ownership, or contribution to the cost of same for its members." By letter dated January 27, 2015, Mr. Woodford acknowledged the agency's unfortunate loss of its building in August 2014 but asserted that it has "failed to file any records for 18 years with the county clerk's office of either counties [sic] which is required under [KRS Chapter 75]." 5 Mr. Woodford further maintained that members of the District Board "are using phone and email to do floating quorums" because the District does not own a computer and e-mails are consequently directed to personal electronic devices. According to Mr. Woodford, the Chief and the Assistant Chief have cell phones that are paid for by the District.
Given the continued lack of clarity regarding which records were still in dispute and why, this office asked counsel, under authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, to please identify which records, if any, were not provided to Mr. Woodford and cite the statutory basis for withholding those records in whole or in part, if any. See KRS 61.880(1); 61.880(2)(c). By letter directed to Mr. Woodford on January 15, 2015, but provided for consideration by fax dated February 3, 2015, counsel for the District advised with regard to Mr. Woodford's request for "[b]y-laws, policies and minutes of gifts or awards, over the last three year[s]," that it had assembled the records that survived the fire of August 5, 2014, "and filed them with the Spencer County Clerk's Office at the Spencer County Courthouse in Taylorsville, KY." The agency did not specify which of those records had survived the fire. Counsel further advised Mr. Woodford in a separate letter dated January 15, 2015, that his client "has arranged for you to inspect and review all of its surviving records at their temporary office . . . on Friday, January 23, 2015," during normal business hours. The District still failed to clarify which records constituted the "surviving records" and which no longer existed. Attached to counsel's January 15 letter was "the confirmation of the gift card furnished to the former board chairman, Robert Jones, upon his resignation from said position on or about 7/1/14." Counsel subsequently forwarded a hard copy of the bank statements from January 1, 2012, through January 22, 2015, which Mr. Woodford was allowed to review on January 23, 2015, and was also provided with electronically as of February 3, 2015.
By letter dated February 5, 2015, this office provided the District with another opportunity to satisfy its burden of proof under KRS 61.880(2)(c) by asking counsel per KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, to "please specify which responsive documents were included among those characterized as 'all data' that was also furnished to a different requester" and to "identify which responsive minutes, notices, agenda, or communications were provided to Mr. Woodford and which of those records were not provided." This office further asked the District to clarify which of those records could not be provided on the basis of nonexistence, i.e ., because they were not among the "surviving records," and which records, if any, were not provided for a different reason(s), identifying the purportedly applicable statutory exception and explaining how it applied to the records withheld. Further clarification was also requested as to whether the District had provided Mr. Woodford with a copy of the by-laws and minutes "reflecting or authorizing" gifts or awards in addition to "any and all [a]ward[s], gifts or gift cards paid out of district funds," including checks and reimbursements for the preceding three years per his request. Finally, this office asked counsel to specify which records are now being maintained at the Spencer County Clerk's Office and explain which records, if any, were maintained there per KRS 75.240 prior to August 2014.
By letter dated February 24, 2015, counsel for the District advised that "all data" was that data "which was itemized on the list faxed 2/11/2015 and furnished to" Mr. Woodford. 6 Counsel observed that "[t]he surviving records are those which were provided Mr. Woodford's perusal at his meeting with us on 1/23/2015." The District again failed to specify which records were reviewed. "No records have been withheld, " counsel asserted, "if you accept the fact that all surviving records were furnished for review on 1/23/2015, and all lost records were re-assembled from the members and filed with the County Clerk." With regard to responsive by-laws, counsel advised for the first time that "there are none. As to the minutes 'reflecting or authorizing any gifts' they are contained in the records furnished for review and/or filed with the County Clerk." The District reiterated that a copy of the receipt for the gift card provided to the retiring Board Chairman was furnished to Mr. Woodford in response to his request for "any and all awards, gifts, or gifts cards" and, counsel noted, "this is the only one to my knowledge." In response to concerns that Mr. Woodford had apparently expressed regarding other expenditures located in the banking records provided, counsel explained that his review identified expenses associated with banquets, holiday donations, etc . Finally, counsel advised that "[a]ll minutes and financial reports for the 18 year history of the district are now on file with the Spencer County Clerk which prior to 1/15/2015 included only three months of early minutes. "
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." Although the burden on the agency to respond within three working days "is, not infrequently, an onerous one," 7 the only exception to this general rule is codified at KRS 61.872(5), which expressly authorizes postponement of access beyond three business days only under specified conditions. The unrefuted evidence presented establishes that no written response was issued on behalf of the District until January 15 (following notification of this appeal being issued on January 12) at best, and this inaction violated KRS 61.880(1). In addition, the District subverted the intent of the Act within the meaning of KRS 61.880(4) in failing to either provide Mr. Woodford with timely access to all existing records which might be responsive, in accordance with KRS 61.880(1), or provide a detailed explanation of the cause for delay and the specific date when the records would be available in writing per KRS 61.872(5) if appropriate. This office recently had occasion to engage in a thorough analysis of KRS 61.880(1) and KRS 61.872(5) in 15-ORD-037, the decision resolving Log No. 201500048 (In re: Michael Woodford/Mt. Eden Fire Protection District), a copy of which both parties received. Accordingly, this office will not recapitulate the well-established law regarding application of these provisions in this decision; the analysis contained at pp. 3-5 of 15-ORD-037 is adopted in full. However, the District's belated responses were also substantively deficient.
As the Attorney General has consistently recognized, a public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. However, in addressing the obligations of a public agency when denying access to public records for this reason, the Attorney General has observed that a public agency's "inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms ." 01-ORD-38, p. 9 (other citations omitted). While it is obvious that a public agency "cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient ." 02-ORD-144, p. 3 (emphasis added); 09-ORD-145. In short, "[i]f a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4; 14-ORD-225.
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 indicating that records being sought do not exist following a reasonable search and explaining why. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 03-ORD-205, p. 3; 14-ORD-204. It was therefore incumbent on the District to ascertain whether any responsive public records existed, to promptly advise him of its findings, and to provide him with all existing nonexempt records being sought. 03-ORD-207, p. 3. Insofar as the District failed to confirm both initially and in first responding to Mr. Woodford's appeal whether certain documents being sought were among the "surviving records" eventually provided, and then promptly advise Mr. Woodford in writing, the agency violated the Act. See 09-ORD-145; 10-ORD-137; 14-ORD-225. However, the District cannot be said to have violated the Open Records Act in denying access to nonexistent records.
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, 8 and the Attorney General has applied a higher standard of review to 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). See 11-ORD-091 (Attorney General was not 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); 14-ORD-107; compare 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" ); 11-ORD-074 ("existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable").
The District has conceded its failure to comply with KRS 75.240 prior to January 2015 by ensuring that certain operational records, including some of those requested, were also maintained in the County Clerk's Office. Had the agency discharged this duty, retrieval and production of basic operational records in response to requests made under the Open Records Act could have been achieved in a timely manner without difficulty notwithstanding the loss of its building and the records maintained there. Nevertheless, its admitted failure to comply with KRS 75.240 does not constitute a violation of the Open Records Act.
In accordance with KRS 61.880(1), however, a "response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " When construing the mandatory language of this provision, the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less [amount] to substantial compliance." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208.
"Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence]," this office has long recognized, "it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3)." 00-ORD-10, pp. 10-11(citation omitted)(original emphasis). A "bare assertion" relative to the basis for denial . . . does not satisfy the burden of proof. . . .Id., p. 11. Despite having multiple opportunities, the District has not invoked any of the statutory exceptions codified at KRS 61.878(1)(a)-(n) in responding to Mr. Woodford's request for any communications or in responding to his appeal or subsequent inquiries from this office. The District's failure to specify which of the statutory exceptions codified at KRS 61.878(1) it was relying upon as the basis for denying access to any existing responsive documents, including those communications, or provide any explanation of how that exception(s) applied to such records (which it failed to identify or locate), did violate the Open Records Act.
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 This request is not dated. However, both requests contain a notation of "12-29-14," seemingly added later in pencil, as well as Mr. Woodford's notes, "Failed to respond," and "Failed to comply," respectively. This office received his letter of appeal on January 9, 2015, which contained a handwritten note by Mr. Woodford indicating that his "request was hand delivered on 12-29-14." Regardless of whether his requests were made on December 3 or December 29, however, the District failed to issue any written response in a timely manner.
2 Nevertheless, KRS 61.870(5), 61.876(1)(b), and 61.880(1) contemplate the appointment of an official custodian of the public agency's records who is 'responsible for the maintenance, care, and keeping of public records" and for properly processing open records requests.'" 06-ORD-100, p. 4, note 4 (rejecting similar argument by Westport Fire Protection District and Fire Department).
3 Pursuant to KRS 75.100(2), "Fire protection district" is defined as "fire districts organized under KRS 75.010 to 75.800" whereas KRS 75.100(4) provides that "'Fire department' means the officers, firefighters, and clerical or maintenance employees, including the chief and assistant chief of the department."
4 This office has consistently recognized that a public agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6; 05-ORD-198. However, a request made by a different individual to a different public agency is not "duplicative." The actions of the North East Nelson Fire Protection District have not been challenged and thus have no legal relevance; only the actions of the Mt. Eden Fire Protection District relative to requests made by Mr. Woodford are currently in dispute.
5 Pursuant to KRS 75.240:
The secretary of the board shall keep a minute book, appropriately bound and marked, in which the minutes of each meeting of the board shall be kept, together with all resolutions, tax levies, and other important material the board may designate. A copy of all material required to be kept by the secretary, shall be kept on file in the office of the clerk of the county in which the greater part of the fire protection district or volunteer fire department district lies. The public shall have the right to inspect the book and its content at all times.
6 A copy of that list is of record in Log No. 201500049, a separate appeal filed by Mr. Woodford challenging the inaction of the District in response to a related but separate request.
7 02-ORD-165, p. 3.
8 See KRS 61.8715.