Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
William C. Van Cleve initiated this appeal challenging the denial by the City of Ravenna (City) of his September 18, 2015, request for "an itemized list of all donors and the amount of each donation to the 2015 Ravenna city volunteers picnic, " "an itemized list of all the people who received a gift and how much money each person received from these donations" and "a copy of all expenses paid by the City of Ravenna to sponsor the volunteers picnic. " In a timely written response, Ravenna City Clerk Jamie Hill advised Mr. Van Cleve that "[t]he documents requested are not available. The 2015 Volunteer Thank You Picnic was organized by council member Beverly Thompson and Fire Chief David Harvey." Ms. Hill further advised that the Ravenna City Council approved having Councilwoman Thompson organize the Volunteer Picnic at its January 2015 meeting; the Council voted to approve having Chief Harvey "added to the picnic bank account at the May 2015 council meeting." Mrs. Thompson was responsible for "collecting and keeping [a] record of all donations. Chief Harvey was responsible for purchasing the gifts that were given to the volunteers at the picnic. " Ms. Hill explained that the City "did not use any money from the general fund to pay for anything related to the 2015 Volunteer Thank You Picnic. "
On appeal Mr. Van Cleve maintained that "all the information about the picnic is public information since it was approved by the city council and all transactions were made by city officers." Mr. Van Cleve attached copies of the minutes from the City Council's January 12, 2015, meeting and its May 11, 2015, meeting, at which the City Council voted to approve Beverly Thompson's request "to organize the volunteer firefighter picnic for 2015" and Chief Harvey being "added to the Citizens Guaranty Bank 'Thank You Picnic' account," respectively. Mr. Van Cleve also enclosed a copy of a letter directed to the Editor of the Citizen Voice & Times in which Ravenna Mayor Estine Tipton, Chief Harvey, and "Councilwoman and Fundraiser, Beverly Thompson" expressed their appreciation to a list of donors, both individuals and local businesses, named in the letter. By letter dated September 24, 2015, but received in this office on October 5, 2015, Mr. Van Cleve advised that he was enclosing a copy of a letter that was directed to potential donors by Mayor Tipton, Chief Harvey, and "Fundraiser and City Council Member, " Beverly Thompson. The letter directed to potential donors advised that "[u]nder the leadership of Mayor Estine Tipton and Fire Chief David Harvey the City of Ravenna is planning a 'Thank You Picnic' to honor all Ravenna, Irvine and Estill County Fire Volunteers, Rescue Squad members and their families, dispatchers" and law enforcement personnel. (Emphasis added.) The third paragraph of the letter provides: "Please help the City of Ravenna make this picnic a huge success. . . ." (Emphasis added.)
Upon receiving notification of Mr. Van Cleve's appeal from this office, legal counsel responded on behalf of the City, first disputing the allegation that her client denied the request. Counsel asserted that the City "instead provided the contact information of the council member who was approved to handle the volunteer firefighter picnic at the January 12, 2015 council meeting. . . . This council member would have information regarding whether these records exist or not." 1 The City "has never had any knowledge of the records that Mr. Van Cleve has requested," counsel maintained, nor has the City had such records in its possession. Counsel further confirmed that "a bank account was established where donations collected by the aforementioned, approved council member were deposited, and a redacted version of the bank record can be produced; however, that was not what Mr. Van Cleve requested." Rather, the request was for "an itemized list of donors to the picnic and people who received gifts at the picnic. " According to counsel, this information "is unknown to the city of Ravenna. As far as the expenses paid by the City of Ravenna for the picnic, the City did not pay anything towards the picnic. The picnic was entirely funded by donations collected via the approved council member. " However, the City "is in the process of trying to obtain any records that the council member, Beverly Thompson, may have" that would be responsive to Mr. Van Cleve's request. If such records are obtained, counsel stated, "then correspondence will be sent to Mr. Van Cleve indicating that they are available for inspection. " Based upon the following, this office finds the City's disposition of Mr. Van Cleve's request partially deficient.
The City is a "public agency" under KRS 61.870(1)(d)("[e]very county and city governing body, council, school district board, special district board, and municipal corporation"). Ms. Thompson, a member of the City Council, is a "local government officer" and thus a "public agency" within the meaning of KRS 61.870(1)(a). See 03-ORD-196; 07-ORD-040. As defined in KRS 61.870(2), "public record" means "all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. " Thus, any "[r]ecords generated and maintained by or for [Ms. Thompson] in the discharge of [her] public function are public records for purposes of the Open Records Act, notwithstanding the fact that they remain in [her] custody and control. Such records are subject to inspection upon request unless otherwise exempt." 03-ORD-196, p. 5. The fact that Ms. Thompson requested to organize the Picnic and volunteered to collect and record the donations that funded the Picnic does not alter this determination.
Pursuant to KRS 83A.085(3)(b), the City Clerk is charged with "[p]erformance of the duties required of the 'official custodian' or 'custodian' in accordance with KRS 61.870 to 61.882." 2 The record on appeal in this case is unclear 3 as to whether the City Clerk is the "official custodian" or "custodian" for the individual members of the City Council, in addition to serving in that capacity for the City on whose behalf she issued a timely written response per KRS 61.880(1). However, the City Clerk did not deny being custodian for the members of the City's governing body nor did she deny or confirm the records' existence beyond stating that no public funds were used to fund the Picnic, which logically meant that no list of expenses paid with public funds would have been created or exist. 4 Instead, the City Clerk advised that any responsive documents "are not available." Lack of actual possession, as indicated above, is not dispositive. See 09-ORD-054; 13-ORD-075.
The City was required to not only issue a written response within three days, excluding weekends and holidays, but also provide Mr. Van Cleve with "timely access" to any existing nonexempt records per KRS 61.880(1), 5 or properly invoke KRS 61.872(5), by citing that provision and giving a detailed explanation of the cause for delaying access, in addition to specifying a date when the records would be made available. See 11-ORD-196 for a detailed application of KRS 61.880(1) and 61.872(5). 6 If Mr. Van Cleve "erred in tendering his request[] to the [City Clerk], the [City Clerk was] obligated to immediately forward [his] request[] to the [custodian of the records]. Alternatively, [she was] obligated to notify Mr. [Van Cleve] in writing, on or before the third day after receipt of his request" that his request was misdirected "and 'furnish the name and location of the official custodian of the agency's public records. ' KRS 61.872(4)." 12-ORD-153, pp. 2-3.
The undisputed facts establish that Ms. Thompson, a member of the City Council, volunteered to organize the 2015 Volunteer Thank You Picnic during a public meeting of the City Council and the City Council voted to approve having Ms. Thompson serve in that capacity. This action of the City is documented in the minutes of the City Council's January 12, 2015, meeting and further confirmed in the City's written response to Mr. Van Cleve's request. As indicated, the records in dispute are "public records" under KRS 61.870(2), and the City was not entitled to disclaim all knowledge of those records merely because it did not financially sponsor the Picnic and the City Clerk did not have physical custody or possession of these public records. At a minimum, the City was required "to make a good faith effort to conduct a search using methods which c[ould] reasonably be expected to produce the records requested." 95-ORD-96 (citation omitted); 99-ORD-140; 02-ORD-120; 07-ORD-045; 09-ORD-195; 12-ORD-059. The City's response "contains no indication that a search of any kind was conducted, let alone the requisite description of the search methods employed." 11-ORD-113, p. 6. The mandatory language of KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson v. Alig, 926 S.W.2d 856, 859 (Ky. App. 1996); see KRS 61.880(2)(c).
Notwithstanding the deficiencies noted, the City cannot produce nonexistent records for inspection or copying. A public agency cannot produce that which it does not have nor is a public agency required to "prove a negative" in order to refute a claim that certain records exist. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 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); 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 (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"). 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, nor is this office "empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." 08-ORD-206, p. 1.
Further, the City is not required to compile a list or create a record in order to satisfy a request made under the Open Records Act. Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." 02-ORD-165. p. 5, citing OAG 91-12, p. 5; 09-ORD-145. A review of the statutory language upon which these decisions are premised, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records ") (emphasis added), validates this position. While a public agency violates KRS 61.880(1) "if it fails to advise the requesting party whether the requested record exists," the necessary implication is that a public agency discharges its duty under the 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. The Attorney General has expressly so held on many occasions. 04-ORD-205, p. 4; see 99-ORD-98; 09-ORD-145. It was "therefore incumbent on the [City] to ascertain whether records exist[ed] that [were] responsive to Mr. [Van Cleve's] request, to promptly advise [him] of [its] findings, and to release to [him] all existing [nonexempt] records identified in [his] request." 03-ORD-207, p. 3; 03-ORD-196.
The City's implicit assertion that no list of expenses would exist is entirely credible on the facts presented given that no public funds were apparently used in organizing or planning the Picnic; however, the City has not affirmatively indicated whether a list of individuals who received a gift and in what amount currently exists or, if not, whether any existing documents contain such information. The letter which appeared in the local newspaper identified all of the donors by name and the document or documents from which that information was derived for the letter would necessarily be partially responsive to Mr. Van Cleve's request whether in list form or not. Given its October 6, 2015, response to Mr. Van Cleve's appeal, indicating that it was "in the process of trying to obtain any records" that Ms. Thompson has in her possession, this office trusts that a reasonable search for existing documents responsive to his request has now been conducted and that he will be promptly notified of the results in writing, and provided with an opportunity to inspect and copy such documents per KSR 61.872(3) and 61.874(1).
Either party may appeal this decision may appeal 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 The City Clerk's response identified Ms. Thompson as the Council Member who collected the donations for the Volunteer Picnic and kept a record of same but did not actually include any contact information for Ms. Thompson per KRS 61.872(4), which provides that "[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."
2 KRS 61.870(5) defines "Official Custodian" as "the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control." On the other hand, KRS 61.870(6) provides that "'Custodian' means the official custodian or any authorized person having personal custody and control of public records[.]"
3 The City did not provide this office with a copy of the rules and regulations it has presumably adopted in accordance with KRS 61.876(1), and posted in accordance with KSR 61.876(2), identifying, among other things, "[t]he title and address of the official custodian of the public agency's records" per KRS 61.876(1)(b).
4 If a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4. With regard to how specific a public agency must be in denying the existence of documents requested, the analysis contained in 09-ORD-019 is controlling. The Attorney General has consistently recognized that "it is incumbent on the agency to so state in clear and direct terms" and that "a written response that does not clearly so state is deficient." 02-ORD-144, p. 3 (citation omitted); 11-ORD-081; 15-ORD-018.
5 In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . 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."
6 KRS 61.872(5) states:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.