Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Janna Stadtmiller appeals the Boone County Fiscal Court's failure to respond to her faxed April 11, 2015, request for "[a] copy of the policy where it outlines that an employee who is already part of the CER system cannot be an employee at the fiscal court." On April 9, 2015, Ms. Stadtmiller initiated this appeal complaining that, as of that date, she had received no response to her request. This office issued notification of Ms. Stadtmiller's appeal to the fiscal court on April 14, 2015.
By letter dated April 20, 2015, the fiscal court responded to Ms. Stadtmiller's appeal. Acknowledging its failure to comply with KRS 61.880(1) by issuing a timely written response to her request, the fiscal court explained that "delay beyond the three-day response time frame apparently took place as [fiscal court] staff attempted to secure the information requested from Kentucky Retirement System." The agency attached a copy of its April 15 response in which it documented its efforts "to secure the policy information Ms. Stadtmiller was requesting, since [the fiscal court] did not have a written policy on point per her request."
The fiscal court prefaced its April 15 response by advising Ms. Stadtmiller that it could not provide her "with a written policy that states 'an employee who is already part of the CERS retirement cannot be an employee at the fiscal court.'" After describing its unsuccessful efforts to locate the requested policy, the fiscal court attempted to respond to Ms. Stadtmiller's concerns in narrative form. In closing, the fiscal court extracted language from the Kentucky Retirement Commission's website relating to seasonal employees that was partially responsive to Ms. Stadtmiller's request and indicated that its search continued.
Although untimely, 1 the fiscal court's response was otherwise consistent with the requirements found at KRS 61.880(1). That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, 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. An agency 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
The Boone County Fiscal Court's denial was not based on a "specific exception" but on its inability to produce a record that was not in its possession and that could not be located. This office has consistently recognized that "A public agency cannot afford a requester access to a record that it does not have or that does not exist." 14-ORD-027, p. 2 citing 11-ORD-209. A complainant may overcome an agency's denial that records exist but "must make a prima facie showing that such records do exist." 14-ORD-097, p. 2, citing Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005). The fiscal court discharged its duty under the Open Records Act by notifying Ms. Stadtmiller, in clear and direct terms, that it could not produce a record that was not in its possession and could not be located. 01-ORD-38, p. 9; 02-ORD-144, p. 3; 02-ORD-163, note 1.
Although Ms. Stadtmiller stated, in her request, that the assistant county administrator "will know what this request is in regards to," she did not make a " prima facie showing that such [a policy] exist[s]." 11-ORD-74, p. 3. In its April 15 response, the fiscal court advised Ms. Stadtmiller that it could not locate the requested policy, provided her with pertinent information from the Kentucky Retirement Systems' website along with narrative responses to her questions, and assured her that fiscal court was "still working on it." As of the date of the response, this was as much as the fiscal court could do since its efforts to locate a state or local policy that mirrored Ms. Stadtmiller's request had proven unsuccessful. Therefore, with the exception of its failure to issue a timely written response, we find that the Boone County Fiscal Court did not violate the Open Records Act in the disposition of Ms. Stadtmiller's April 1 request.
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.
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