Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
William C. Van Cleve appeals the Ravenna City Council's response to his May 14, 2015, request for copies of "the ordinances that were enacted according to KRS 83A.070(1) and KRS 83A.060(1) through (5) that set the compensation of the Ravenna City Mayor at $ 800.00 per month and the Ravenna City Council members at $ 100.00 per month." On behalf of the council, the Ravenna City Clerk initially advised Mr. Van Cleve that the "[r]ecords are available for inspection in my office Monday through Friday from 8:00 a.m. to 4:00 p.m." or that the records would be mailed to him if he expressed a preference for receipt of the records by mail and prepaid for copies and postage. The council later acknowledged that it did not possess responsive ordinances and provided Mr. Van Cleve with a copy of the minutes of the June 6, 2011, meeting. In supplemental correspondence directed to this office and Mr. Van Cleve, the council explained that "[t]he previous administration did not draft a written ordinance that Mr. Van Cleve has requested, and the attached minutes from June 6, 2011, are the closest records that the city clerk can locate related to [that] request."
The Ravenna City Council's original response was issued on the same day Mr. Van Cleve submitted his request and before it had an opportunity to confirm the existence of the ordinances he sought. Although the response was timely, it was procedurally deficient. The council's "first obligation under the Open Records Act was to identify responsive records." 15-ORD-109, p. 3. 1 Because the Ravenna City Council agreed to honor the request before realizing that the records identified in the request did not exist, we find that the council "committed a procedural violation of the Act by its failure to conduct an appropriate search for the requested [records]." 15-ORD-109, p. 3.
As noted, the council later acknowledged that it could not produce the requested ordinances and provided Mr. Van Cleve with "the closest records that the City Clerk [could] locate . . .," namely the June 6, 2011, council meeting minutes. 2 Responding to Mr. Van Cleve's statement on appeal that "[t]he last ordinances for the compensation of mayor and city council members was enacted on December 7, 1992, . . . to compensate the mayor $ 300.00 per month and $ 25.00 per month for the council members," the council explained that the previous administration did not adopt the statutorily required ordinance setting the compensation of elected city officers. KRS 83A.070(1). 3
In contrast to 15-ORD-109, in which we located "no established law, policy, or practice" that required the creation of the disputed record, in this appeal the disputed record is one that is statutorily presumed to exist. 12-ORD-192 (county's inability to produce statutorily required written appraisal for land purchase raised a presumption of the existence of the appraisal that the county failed to rebut). A copy of 12-ORD-192 is enclosed. At page 4 of that decision, we noted:
In Eplion v. Burchett 354 S.W.3d 598, 604 (Ky. App. 2011), Kentucky's courts agreed with the Attorney General's position that "when it is determined that an agency's records do not exist, the person requesting the record 'is entitled to a written explanation for their nonexistence. '" Citing 10-ORD-078.
Based on KRS 83A.070(1), the ordinances identified in Mr. Van Cleve's request must exist. They do not. As we have so often observed, "A public agency cannot afford a requester access to a record that it does not have or that does not exist, 15-ORD-109, p. 3 (citing 99-ORD-98). Absent prima facie evidence of the record's existence, the agency discharges its duty under the Open Records by affirmatively so stating." 15-ORD-109, p. 3, 4 (citing 99-ORD-150). 4 The Ravenna City Council discharged its legal obligations, albeit belatedly, by notifying Mr. Van Cleve that the ordinances he requested do not exist and explaining that the previous administration failed to adopt the statutorily required ordinances. Further explanation for the nonexistence of the records was impeded by the council's inability to answer for its predecessors' omission. We affirm the council's ultimate disposition of Mr. Van Cleve's open records 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.
Footnotes
Footnotes
1 15-ORD-109 cites 95-ORD-96 for the proposition that a public agency has a duty "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested[.] Thus, the agency must expend reasonable effort to identify and locate the requested records."
2 The relevant portion of the minutes reads as follows:
Danny Crowe made motion to document the council salary at $ 100 per month, Mayor $ 800 permanently, and all city employees will be given a $ 1 hr. raise. Erstine Tipton seconded, all in favor.
3 KRS 83A.070(1) states that "[t]he legislative body of each city shall by ordinance fix the compensation of every elected city officer not later than the first Monday in May in the year the officer is elected. An elected officer's compensation shall not be changed after his election or during his term of office." (Emphasis added.)
4 Compare Bowling v. Lexington-Fayette Urban Cnty. Gov't., 172 S.W.3d 333, 341 (Ky. 2005). In Bowling , the Kentucky Supreme Court recognized that a requester is not entitled to be heard on his claim that records actually exist, when he has been denied access to the records based on their nonexistence, absent "a prima facie showing that such records do exist."