Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Rick Rash appeals the City of Orchard Grass Hills' disposition of his February 11, 2016, request for copies of "engineering studies or [engineering] judgments related to the stop signs placed at [eight specifically identified]?intersections. ..." Mr. Rash received no response from the city, prompting him to initiate this open records appeal on February 19, 2016.
Mr. Rash's appeal reached this office on February 23. The Office of the Attorney General issued notification of the appeal on February 24. On the same day, the city notified Mr. Rash that "[n]o engineering study or judgment has been found regarding installation of stop signs." 1 Under authority of KRS 61.880(2)(c) 2, on March 11, 2016, this office submitted a written request to the city for additional documentation to substantiate its position. Specifically, we asked that the city "describe how [it] conducted its search for engineering studies related to the erection of the stop signs identified in Mr. Rash's request."
On behalf of the City of Orchard Grass Hills, Mayor Lalli described his search:
I reached out to the following people to find information about a study: Mark Adams (current city engineer) and he subsequently reached out to Dale Hedinger, our engineer for many years before Mark.
When that turned up nothing, I began to track down council members to ask their reasoning for the stop signs in question. The mayor that was serving at the time of installing has passed away in the last few years so was not able to be questioned. Two different councilmen (from 10+ years ago) recalled the discussion of stop signs based on the safety of pedestrians, especially due to the number of children in our city and the lack of sidewalks in specific parts of the city. Also discussed was a number of accidents at some of the intersections where the signs were eventually installed. (Ironically, I am one of those accidents! At the intersection of Poplar Hill and Autumn Bent Way, I was T-boned by a car driving up Poplar Hill while I was trying to turn left. That was in January of 2002 and we'd only lived in the city for a few months).
The records I have in my possession have been gone through to the best of my ability at this point. I had hoped to find minutes with specific discussions regarding these signs but I haven't found anything. We also tried to track information down by going through purchase orders to see if we could determine exactly when the signs would have been discussed and installed. That did not lead us to any concrete information.
Mayor Lalli then described his effort to verify the propriety of the placement of the signs from, among others, the Kentucky League of Cities. 3
The exhaustive search which Mayor Lalli describes satisfies the standard for an adequate search recognized in 95-ORD-96. Mayor Lalli made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested." 95-ORD-96, p. 3, citing Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978). He questioned the current and past city engineers and members of the city council. He reviewed council minutes for discussions relating to the signs and financial records to establish the dates on which the signs were discussed and installed. Although his search yielded no results, he used all methods that could reasonably be expected to produce the records to which Mr. Rash requested access. Although the City of Orchard Grass Hills violated KRS 61.880(1) 4 in failing to respond in writing, and within three business days, to Mr. Rash's request, it discharged its statutory duties, after receiving notification of his appeal, by conducting an exhaustive, albeit unsuccessful, search for responsive records. The city cannot produce for inspection records that do not exist or cannot, after an adequate search, be located. See, e.g., 10-ORD-077.
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 In an accompanying email addressed to this office, Mayor Doug Lalli advised us that "there is no record of a study having been done."
2 KRS 61.880(2)(c) states:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation . The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.)
3 These efforts were commendable but not legally required under the Open Records Act. Because this is not the appropriate forum for review of issues relating to the legality of the stop signs, we do not address those issues. KRS 61.880(2)(a).
4 KRS 61.880(1) provides:
If a person enforces KRS 61.870 to 61.884 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. 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.