Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Uriah M. Pasha initiated this appeal by letter dated August 28, 2015, challenging the purported inaction of the Rowan County Clerk relative to his August 20, 2015, request for a "copy of the correspondence from Uriah Marquis Pasha #092028 dated August 10, 2015, concerning the Criminal Complaint submitted to the Rowan County District Court which [charges] Rowan County Clerk Kim Davis with violating KRS 522.030 Official Misconduct; and Your response thereto. 1 " However, upon receiving notification of Mr. Pasha's appeal from this office, Deputy Clerk Nathan R. Davis responded on behalf of the agency. Mr. Davis advised that Mr. Pasha's August 20, 2015, request was not received until August 31, 2015, and it "was returned due to records being in the Rowan County Circuit [Clerk's] Office as was noted with the return mail. The record requested is not housed nor mandated by statute to be housed in the Rowan County [Clerk's] Office." 2 (Original emphasis.) The Clerk's Office issued a written response within three business days of receiving Mr. Pasha's request per KRS 61.880(1), 3 advising per KRS 61.872(4) that such records are maintained in the Circuit Court Clerk's Office.
The right of inspection attaches only if the record in dispute is "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. A public agency's response 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 no such record exists, or advising that it lacks possession and explaining why, as the Clerk's Office did here. 13-ORD-052, p. 3. On many occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 99-ORD-98; 10-ORD-222. Under the circumstances presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2. Rather, KRS 61.880(2)(a) narrowly defines our scope of review.
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, 4 the Act only regulates public access to records that currently exist and that are in the possession or custody of the public agency to which the request is directed. However, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the record(s) being sought after KRS 61.8715 took effect on July 15, 1994. A public agency must offer some explanation for the nonexistence of the record or its lack of possession if appropriate. See KRS 61.880(2)(c); 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 (recognizing that the "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").
When, as in this case, a public agency denies that any responsive document exists in the possession or custody of the agency, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 11-ORD-137. The Clerk's Office cannot produce that which it does not have nor is the Clerk's Office required to "prove a negative" in order to refute a claim that a certain record exists in the possession or custody of the agency in the absence of a prima facie showing by the requester. See Bowling v. Lexington Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005); 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 11-ORD-091 (appellant did not cite, nor was the Attorney General 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). Mr. Pasha did not cite nor is the Attorney General aware of any legal authority requiring a county clerk's office to possess or maintain a criminal complaint 5 nor would that agency have any reason to generate a response to such a complaint. 6
Pursuant to KRS 61.872(4), "[i]f the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. " The Clerk's Office promptly advised Mr. Pasha that it does not possess or maintain the record(s) being sought, and notified him that any such records would be in the custody of the Circuit Court Clerk in substantial compliance with KRS 61.872(4). 7 Accordingly, this office affirms the denial of Mr. Pasha's request by the Clerk's Office.
A party aggrieved by this decision may appeal it 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 Mr. Pasha implicitly relied upon KRS 197.025(7)(extending the statutory deadline for agency response from three business days to five) in asserting that the Clerk's Office did not respond within five business days; however, that provision expressly applies only to the Department of Corrections (and facilities under its jurisdiction). Accordingly, the Clerk's Office was required under KRS 61.880(1) to issue a written response within three business days. The Deputy Clerk confirmed that the Clerk's Office has a practice of responding immediately upon receipt of such requests and that it did so here. Mr. Pasha's letter of appeal is dated August 28, 2015, the sixth business day after his August 20, 2015, request, which arguably means that he did not allow sufficient time for mail delivery.
2 RCr 2.02 provides:
The complaint is a written statement of the essential facts constituting the offense charged. It shall be made under oath and signed by the complaining party before a judge or a person who (a) is legally empowered to administer oaths and (b) has been authorized to administer such oaths to the complaining party by written order of a judge for the county having venue of the offense charged.
See also RCr 2.04 relating to issuance of a warrant or summons.
3 The Clerk's Office was unable to provide this office with a hard copy of the note attached to documentation it returned to Mr. Pasha as the agency did not maintain one. The Deputy Clerk verbally confirmed as much. In accordance with instructions for the retention and disposition of records that fall within Records Series L4962 on the Local Governments Records Retention Schedule , entitled "Open Records Register," which may contain, among other things, the written disposition of the request and the date of the disposition, such records must be retained for five (5) years and then destroyed. The inability of the Clerk's Office to provide a copy of its written response is not a violation of the Open Records Act but does raise concerns regarding its records management and retention policies.
4 See KRS 61.8715.
5 Rather, the County Clerk is charged with maintaining, for example, records of the fiscal court per KRS 67.100, and recording per KRS 382.300(1) all deeds, mortgages and powers of attorney that "are lodged for record, properly certified, or that are acknowledged or proved before him as required by law."
6 Pursuant to KRS 522.030(2), Official Misconduct in the Second Degree is a Class B misdemeanor. The "District Court has exclusive jurisdiction to make a final disposition of any charge or a public offense denominated as a misdemeanor or violation . . ." per KRS 24A.110. This office independently verified that the Clerk for the Rowan County District Court and the Rowan County Circuit Court are one and the same. Accordingly, the County Clerk properly referred Mr. Pasha to the Circuit Court Clerk for the record in dispute, though records in his custody are not subject to provisions of the Open Records Act. See 98-ORD-6.
7 If the agency did not also provide Mr. Pasha with contact information for the records custodian of the agency, its response was deficient to that limited extent. See 12-ORD-002.