Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
Courier-Journal reporter James Bruggers appeals the Louisville Water Company's response to his March 23, 2015, request for a copy of "all contracts between the Louisville Water Co. and [a named employee] regarding services she will or may provide to the water company, following the end of her regular employment . . . [on or about] March 31." The water company issued a timely written response in which it referenced Mr. Bruggers' March 3 request "for all settlement agreements or separation agreements and/or other documentation that might not be called separation or settlement agreements but would contain financial provisions and/or obligations related to the termination/resignation of [a named employee]." Denying Mr. Bruggers' request, the water company explained:
The only records in the possession of the Louisville Water Company which are responsive to this request, are the subject of your previous request of March 3, 2015, and [our] denial dated March 6, 2015. You appealed the denial, and it is currently pending before the Kentucky Attorney General. Accordingly, your request is denied for the same reasons set forth in [our] preview letter, namely that such records are exempt under KRS 61.878(1)(a). 1
Mr. Bruggers thereafter initiated this appeal. Although notified of Mr. Bruggers' appeal by this office, pursuant to 40 KAR 1:030 Section 2, 2 the water company did not supplement its March 26 response.
If the Louisville Water Company confirmed the nonexistence of any records responsive to Mr. Bruggers' request for contracts, after conducting an unsuccessful search for the contracts "using methods that could reasonably be expected to produce" them, its response that "the only records in [its] possession which are responsive to this request are the subject of [Mr. Bruggers'] . . . March 3, 2015, [request]" was proper. However, the water company gives no indication that it attempted to locate any contracts relating to the named employee's future services. If the water company did not conduct a search for such contracts before denying the existence of any responsive records, other than the settlement or separation agreements that were the subject of his March 3 request, it cannot be said to have discharged its duties under the Open Records Act.
Mr. Bruggers' March 3 and March 23 requests are not identical. On March 3 he requested settlement or separation agreements relating to the terms and conditions of the named employee's departure. On March 23 he requested contracts "regarding services she will or may provide to the water company" after she departs. While all settlement or separation agreements are contracts, not all contracts are settlement or separation agreements. If the water company did not confirm the nonexistence of any contract relating to the employee's post-departure services, by conducting a good faith search for such contracts, its response was deficient.
In 95-ORD-96, the Attorney General addressed the standard for measuring the adequacy of an agency's search for public records in cases of denials based on "the nonexistence, destruction, or loss of public records. " 95-ORD-96, p. 3. At pages 3 and 4 of that decision, we observed:
[T]he Open Records Act does not require an agency to conduct "an exhaustive exhumation of records," Cerveny v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D. N.Y. 1983). It is, however, incumbent on an agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, 445 F.Supp. at 775. Thus, the agency must expend reasonable efforts to identify and locate the requested records. If the documents do exist, and the public agency cannot locate them, the agency's "good faith [sh]ould not be impugned unless there was some reason to believe that the supposed documents could be located without an unreasonably burdensome search." Goland v. Central Intelligence Agency, 607 F.2d 339, 353 (D.C. Cir. 1979). In assessing the adequacy of an agency search, we "need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).
The record before us does not indicate whether a search was conducted for records responsive to Mr. Bruggers' March 23 request.
We therefore find that if the Louisville Water Company conducted an unsuccessful search using methods that could reasonably be expected to produce the contracts Mr. Bruggers requested on March 23, its response to his request was proper. If it did not conduct a search for the records, its response was improper. In the latter case, the water company should confirm the existence or nonexistence of responsive records by conducting a search that is consistent with the standard set forth above and thereafter notify Mr. Bruggers of the results of its search.
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
1 The Attorney General rendered a decision in the referenced appeal on April 7, 2015. In 15-ORD-061, we determined that the water company violated the Open Records Act in denying Mr. Bruggers' request for settlement or separation agreements on the basis of KRS 61.878(1)(a).
2 40 KAR 1:030 Section 2 provides:
Upon receiving a complaint, the Attorney General's Office shall send notice to the public agency that a complaint has been filed and a copy of the complaint. The agency may provide the Attorney General with a written response to the issues raised in the complaint. The agency shall send a copy of this response to the complaining party taking the appeal. If the agency fails to provide such copy, the Attorney General shall provide one upon request. The Attorney General shall consider any response received before the decision is prepared; however, the Attorney General shall not agree to withhold action on the complaint beyond the time limit imposed by KRS 61.846(2) and 61.880(2).