Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Peggy D. Guier initiated this appeal challenging the disposition by the Hopkinsville Surface and Stormwater Utility ("Utility") of her December 2015 and January 2016 requests for specific documents relating to what she characterized in her February 19, 2016, letter as the "proposed dam to be constructed on the South Fork of Little River in Christian County, Kentucky." Ms. Guier first asked for the minutes of Utility meetings from the past twenty-four (24) months, design plans for the "proposed retention dam on the South Fork Little River," any "federal or state permits for construction of proposed retention dam," correspondence with specified federal and state agencies "related to proposed dam since July 2009," and "letters or applications for proposed dam submitted to" any of those federal or state agencies "for funding and/or construction since July 2009." By letter dated December 28, 2015, Director Steven R. Bourne responded on behalf of the Utility, advising that approved minutes responsive to her December 2015 request were being provided; he advised only "None" in response to all other categories.
Ms. Guier subsequently requested a copy of "all records whether hard copy or in electronic format of all documents made available to the public in the November 16, 2015, meeting of the [Utility] related to a proposed retention structure," including a "power point presentation and a paper document purporting to be the proposed structure" that were "viewed by members of the public at this meeting[.]" By letter dated January 19, 2016, Mr. Bourne advised that "no documents were presented to the public for a proposed retention structure" during the meeting. He maintained that "[t]here has been no public dissemination of the requested information in either public meetings and/or informational conferences with affected property owners and/or their invitees" and "information in the possession of our engineers regarding any potential stormwater management project is deemed exempt pursuant to KRS 61.878(1)(f) and 61.878(1)(i)." 1
Stephen E. Underwood, legal counsel for the Utility, responded to Ms. Guier's appeal on behalf of his client. He clarified that the Utility "has under consideration a proposed retention structure on the south fork of Little River . . . for the temporary storage of stormwater during significant rainfall events. Ms. Guier is not the owner of any property which would in [any way] be impacted by the proposed retention basin[.]" Representatives of the Utility have "properly engaged in discussions with property owners who would be actually impacted," Mr. Underwood advised, "for the purpose of negotiating stormwater storage easements on their property." The Utility has also undertaken "to obtain temporary rights of entry for geotechnical studies to determine the feasibility of the potential project, as well as a through cost-benefit analysis." Counsel observed that Ms. Guier's appeal is "mostly focused on a particular meeting between Utility representatives, engineers and an affected property owner, to which the property owner's corporate president brought her invitees to provide input for her. . . ." 2 The Utility again disputed "that there has been a 'public' disclosure or dissemination" of the requested information.
Having refuted several other factual claims made by Ms. Guier, which do not affect our determination of the justiciable issues presented, counsel reiterated the Utility's reliance on KRS 61.878(1)(f) and (i), quoting OAG 91-117 in support of its position. 3 If, after the "appropriate engineering study, due diligence and property acquisition the Utility determines that this is a viable and cost effective project to address the chronic flooding," counsel advised, "the permitting process appropriate to the actual project will be initiated." When appropriate, "public discussions and disclosures concerning this potential project and the use of public funds for cost effective flooding relief, will be addressed by the Utility in a public dialogue[.]" In reply, Ms. Guier emphasized the differences between a "retention structure" and a "detention structure," stating that if "this much information, or disinformation is being disseminated, public access to the records is essential." Ms. Guier acknowledged that any information "regarding the purchase of land can be redacted." Finally, Ms. Guier reiterated that information she has requested "was made available to several members of the public whose property was not the subject of purchase" and questioned whether it was the legislative intent of the cited exceptions for such information to be withheld.
Given the limited information presented regarding the nature and content of the specific records being withheld, and how either of the cited exceptions applied to such records, pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office asked counsel to provide additional information, beginning with identifying "the steps that were taken by the Utility to identify and locate any existing documents potentially responsive to Ms. Guier's December 2015 request." This office asked the Utility to "clarify whether any 'real estate appraisals, engineering or feasibility estimates or evaluations' currently exist and whether any such records were discussed in the November 16, 2015, meeting." In addition, this office asked the Utility to "please specify what 'information' your engineers currently possess or maintain that is responsive to Ms. Guier's requests, if any," in addition to "how KRS 61.878(1)(i) applies to specific records or categories of records withheld on that basis." This office also requested that the Utility explain "how release of the specific records withheld on the basis of KRS 61.878(1)(f) would interfere with the purpose of that exception," as outlined at page 2 of 97-ORD-171. Finally, this office asked the Utility to provide a copy of the "power point presentation" and hard copy of the record containing the design of the proposed structure for in camera review.
In addition to providing those records, the Utility offered two affidavits in response, the first being that of Dave Herndon, Planning Services Coordinator with Community and Development Services for Hopkinsville, who advised with regard to each category of records initially sought by Ms. Guier, except for the minutes provided, that he "researched the concept file" and did not find any responsive documents. Without additional information or context in which to assess the adequacy of the search by the Utility, this office must assume that said file is the only location where such records would be maintained. In addressing Ms. Guier's January 2016 request, Mr. Herndon advised that he "again researched the concept file as well as information discussed during the" meeting and confirmed that "there were no documents presented to the public during the referenced meeting." Without further identification of such records, or explanation of how the cited exceptions applied, Mr. Herndon advised that in conducting his review of the "concept file, I consulted with our attorney" regarding information "that was and was not exempt"; he asserted that the "appropriate statutory citations" appeared in the January 19 response.
Senior Project Engineer Rick Harper provided the second affidavit. Mr. Harper advised that Howard K. Bell Engineering "has provided engineering services to the [Utility] regarding a potential flood water control project along the South Fork of Little River in Hopkinsville." According to Mr. Harper, the "project is just now moving beyond the concept stage and moving into the final feasibility stage. The concept for this proposed project is based on basic engineering hydrologic and hydraulic principles." Mr. Harper noted that "[t]his concept has been presented to the adjacent property owners to show the potential extent and impact of the proposed project. No correspondence has been submitted to or received from any regulatory agencies. At the appropriate time in the process, the project will be submitted to the applicable regulatory agencies for review and approval." During this "final feasibility stage," Mr. Harper observed, "principles utilized in the concept development will be further analyzed, including a preliminary design of the outlet structure, to determine the impact of the proposed project on the adjacent properties and the benefits to properties downstream." Mr. Harper explained that the "Opinion of Probable Project Costs will be further developed along with anticipated design, review and approval, and construction time lines." He provided a compact disc containing a PDF of a "FEMA composite map and a [PDF] of the power point slides shown [at] the meeting" held on November 16, 2015, but did not provide any explanation of their content or context in which to evaluate whether the slides were properly withheld.
Neither of these affidavits directly answered whether any records properly characterized as "real estate appraisals, engineering or feasibility estimates or evaluations" currently exist although our understanding from the second affidavit is that no such records have been generated this early in the process. The Utility did not clarify what "information" the engineer (s) currently possess or maintain, if any, that is responsive to either of Ms. Guier's requests and to which Mr. Bourne denied access on the bases of KRS 61.878(1)(f) and (i) in his response on behalf of the Utility. Also lacking is any explanation of how KRS 61.878(1)(i) applies to specific responsive documents withheld or "how release of the specific records withheld on the basis of KRS 61.878(1)(f) would interfere with the purpose of that exception," assuming that any existing records can be properly characterized as either appraisals, engineering or feasibility estimates, or evaluations. The Utility cannot produce that which it does not have in response to Ms. Guier's December 2015 request; however, the Utility's initial and supplemental responses lacked the specificity required under KRS 61.880(1) and 61.880(2)(c) to justify its disposition of Ms. Guier's January 2016 request.
A public agency such as the Utility cannot produce that which it does not have nor is the agency required to "prove a negative" in order to refute a claim that certain records exist 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); 07-ORD-188; 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"); 12-ORD-195. A public agency violates KRS 61.880(1) "if it fails to advise the requesting party whether the" records exist, but discharges its duty under the Act in affirmatively indicating that records being sought do not exist following a reasonable search, and explaining why, if appropriate. 98-ORD-154, p. 2 (citation omitted); 14-ORD-204. 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. Although the intent of the Open Records Act has been statutorily linked to the intent of KRS Chapter 171, pertaining to management of public records (KRS 61.8715), the Act only applies to records that are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2).
Upon receipt of Ms. Guier's December 2015 request, Mr. Bourne advised simply "[n]one," indicating that no responsive documents were located when a search was conducted relative to four of the five categories of records identified. On appeal the Utility confirmed that a search of the "concept file" was conducted and no responsive documents were located except for the minutes provided. The record lacks adequate information for this office to determine whether a more extensive search was necessary. "Absent proof that the [Utility] failed to use methods which could reasonably be expected to produce the records requested, such as anecdotal evidence suggesting the records' existence or production of responsive records obtained from other sources," this office declines to question the Utility's good faith. 12-ORD-153, p. 4. This office trusts "that the [Utility] directed its search not only to the first and most obvious places where responsive records could be located but to all places that might yield responsive records." Id. Absent facts or evidence from which existence of additional responsive documents can be presumed, this office affirms the Utility's disposition of Ms. Guier's December 2015 request.
With regard to Ms. Guier's January 2016 request, all of the responses provided on behalf of the Utility lacked the specificity required under KRS 61.880(1), pursuant to which a "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 "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 852 (Ky. 2013); 15-ORD-003. These requirements must be satisfied for a public agency to satisfy its burden per KRS 61.880(1) and (2)(c).
The records that were viewed in the November 16, 2015, meeting and provided for purposes of in camera review, consist of a "FEMA Composite Map" and slides which are collectively identified as "'Project A' -- South Fork-Flood Improvements" and "'Project A' -- Flood Inundation Time Series 100 year storm," respectively. Although said records were apparently not reduced to hard copy form previously, all of the above fall within the definition of "public record" found at KRS 61.870(2) and Ms. Guier specifically requested "all records whether hard copy or electronic. " The undisputed facts establish that said records were viewed in the subject meeting and the records are thus responsive to Ms. Guier's January 2016 request notwithstanding the continuing debate centered on the propriety of that meeting. It was not self-evident from a review of those records that either the map or the slides fall within the parameters of either statutory exception. Rather, both exceptions invoked appear facially inapplicable.
KRS 61.878(1)(f) only authorizes the withholding of "[t]he contents of real estate appraisals, engineering or feasibility estimates and evaluations made by or for a public agency relative to acquisition of property, until such time as all of the property has been acquired. . . ." This exception, by its plain language, cannot be construed to extend to records other than the "contents of real estate appraisals, engineering or feasibility estimates and evaluations made by or for" the Utility. See 99-ORD-215 (agency interpreted KRS 61.878(1)(f) too broadly in denying request for map of a projected bypass project); 05-ORD-043 (information "that would inform the public as to what the [agency] is doing relative to a project, such as the location and description of the project, that does not reflect the appraised value or contents of the appraisal" must be released). The Utility "may not withhold records relating to the [proposed structure], under the guise of KRS 61.878(1)(f), unless the records fall squarely within the parameters of that exception." 12-ORD-135, p. 9.
KRS 61.878(1)(i) authorizes the withholding of "[p]reliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency. " A "composite map" is not a "draft" or a "note." See 97-ORD-183, p. 4. Likewise, maps identifying the location of the South Fork and North Fork of the Little River and the locations of individual properties do not fall within either category based on the "common and approved uses" of such terms. KRS 446.080(4). Nor do charts identifying "flood profiles," etc. such as those contained in the slides viewed in the meeting. None of those records can be properly characterized as "correspondence with private individuals." Accordingly, "disclosure [of the record(s) in dispute] is not contingent upon the occurrence of final agency action." 99-ORD-220; 06-ORD-135. Rather, "the question of whether final action has been taken by the agency becomes irrelevant . . . [and] we do not reach the second part of the KRS 61.878(1)(i) analysis, requiring final action of a public agency, if the first part of the analysis . . . is not met." 99-ORD-220, p. 5; 06-ORD-135. Based upon the limited information presented, this office must conclude that the Utility's reliance on KRS 61.878(1)(i) was also misplaced.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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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