Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
William Daugherty initiated this appeal challenging the inaction of the City of Lawrenceburg upon receipt of his November 1, 2015, request, directed to Public Works Director Monty Rhody, for specified information and records pertaining to his "Federal Copyright Infringement Case." 1 Mr. Daugherty asked the following:
Who is the Engineer for this Project[?] I will need a copy of the plans for streets, water and sewer and approval Letters of approval [sic] from City, State and Water District[s]. Who is doing the inspection [?] Who provided the estimate of quantity for Letter of Credit[?] If you have other information, I would appreciate it.
By letter directed to City Attorney Robert Warren Myles on February 2, 2016, Mr. Daugherty advised that during a subsequent conversation with Mr. Rhody he concluded that "most of the things" he requested, "did not actually exist." Mr. Daugherty indicated that he was "expecting a hard copy answer to" his request but had not received one as of that date. Accordingly, Mr. Daugherty expressly requested "a hard copy answer" to his request for information and requested "similar information which has been prepared" since the November 1, 2015, request. Having received no response, Mr. Daugherty sent a second letter to Mr. Myles on March 2, 2016, reiterating his request for the information specified in his November 1 letter to Mr. Rhody, in addition to "all similar information which has originated on this project from its beginning to the present date." Mr. Daugherty's undated letter of appeal was received in the Office of the Attorney General on June 22, 2016; the City had not responded to any of his correspondence as of when he mailed the appeal.
Upon receiving notification of Mr. Daugherty's appeal from this office, Mr. Myles responded on behalf of the City. Mr. Myles initially advised that "at no time has the City received any communication from Mr. Daugherty indicating that such communication was an 'open records request.' The City has received multiple documents threatening litigation and declaring that Mr. Daugherty is represented by counsel." 2 Attached to Mr. Myles' June 27, 2016, appeal response was a copy of his June 10, 2016, letter to Mr. Daugherty, which Mr. Myles indicated he was forwarding another copy of to Mr. Daugherty via certified mail. No certified mail receipt was provided. In that letter, Mr. Myles noted that Mr. Daugherty's initial statement in his November 1, 2015, letter "is an unmistakable threat that the City is or will be included in your Federal litigation." Because Mr. Daugherty mentioned gathering information for his attorney, Mr. Myles advised that "you are pursuing litigation and further that you are represented by legal counsel. " Accordingly, Mr. Myles asserted "there should be no direct communication between yourself and legal counsel for an opposing party (the City), or any employee or representative of the City." Mr. Myles observed that "[r]equesting information from a party to a lawsuit is traditionally done through the discovery process and is subject to the Kentucky Rules of Civil Procedure, or in this case, as you assert this is a Federal action, the Federal Rules of Civil Procedure." When the City is properly served with discovery motions by counsel, Mr. Myles advised, the City will appropriate respond to such requests.
In addressing the specific items that Mr. Daugherty requested, Mr. Myles advised:
1. Who is the Engineer for this Project?
RESPONSE: The City does not have this information.
2. I will need a copy of the plans for the streets, water and sewer. . . .
RESPONSE: The City is not the custodian of official records pertaining to plats. Such information is potentially available at the office of the County Clerk for Anderson County.
3. and . . . Letters of approval from City, State and Water District[s].
RESPONSE: The City is unaware of any "Letters of approval" but observes that plats of record in the County Clerk's Office are signed by various agencies.
4. Who is doing the inspection?
RESPONSE: Subdivision plats and subdivisions themselves are subject to multiple levels of inspection at various times and for various reasons. Given the limited guidance provided by your question, the City is unable to respond further.
5. Who provided the estimate of quantity for Letter of Credit?
RESPONSE: the estimated bond amount for a Performance Bond requested by a developer is recommended by the City Public Works Director and is approved by Planning & Zoning.
Mr. Myles advised that the City was unable to comply with Mr. Daugherty's "open-ended request for 'other information' but will respond to requests for information tendered by your legal counsel. " This position is contrary to existing legal authority.
In light of Kentucky Lottery Corporation v. Stewart, 41 S.W.3d 860, 864 (Ky. App. 2001), Mr. Daugherty's request "should be evaluated independently of whether or not [he] is a party or potential party to litigation." See 12-ORD-152 (agency erred in denying access to some records because they were "generally available through discovery" ). Parties to litigation should not use the provisions of the Open Records Act as a substitute for discovery requests; however, the Attorney General has consistently recognized that the presence of litigation does not suspend the duties of a public agency under the Act in a line of decisions dating back to 1982. Although there is litigation in the background of a request, a "requester stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of the litigation provides no reason to grant or deny his request to inspect the records." OAG 82-169, p. 2. Rather, the presence of litigation involving the parties "should not operate to prevent inspection of public records, since separate statutory grounds for inspection have been provided by the General Assembly. No exceptions to the general rules regarding inspection are provided for denying inspection of public records on the ground that litigation is either contemplated or in process." OAG 89-53, p. 4; OAG 89-65.
As the Court in Stewart observed, KRS 61.878(1) "does not exempt or exclude all records from the open records disclosure, in favor of discovery in litigation or anticipated litigation cases , [emphasis added] but limits the release of records specifically listed in KRS 61.878(1) to those records which parties can obtain through a court order." Id. at 863. Quoting OAG 82-169 and OAG 89-65, the Court declined to interpret KRS 61.878(1) in such an "absurd and unreasonable" manner as to allow a nonparty to access nonexempt records while disallowing a party to access the same records. Stewart at 863; see Department of Revenue v. Wyrick, 323 S.W.3d 710, 714 (Ky. 2010)(reaffirming Stewart in holding that KRS 61.878(1) "is an explanation of a court's authority to order inspection of documents otherwise exempted from disclosure under KRS 61.878(1)(a)-(n) . . . [and] not an exception to an agency's duty to disclose nonexempted records")(original emphasis). See 11-ORD-108.
That said, the City was not required to comply with a request for information, such as items 1, 4, and 5 of Mr. Daugherty's request, nor was the City required to answer questions or conduct research in order to satisfy Mr. Daugherty's request. "The purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. A public agency is "not obligated to compile a list or create a record to satisfy an open records request." 02-ORD-165, p. 4; 14-ORD-073. In sum, the Open Records Act "was not intended to provide a requester with particular 'information,' or to require public agencies to compile information, to conform to the parameters of a given request." 02-ORD-165, p. 4 (citation omitted). "What the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id., p. 5, citing OAG 91-12, p. 5. See KRS 61.871, KRS 61.872(1), and KRS 61.872(2). The City was unable, in the alternative, to make any nonexempt public records that may contain the information being sought available for on-site inspection because it did not possess any, but ultimately denied having any records that would contain the information requested at item 1, and partially complied with KRS 61.872(4) in addressing items 2 and 3, by notifying Mr. Daugherty that the City does not possess those records and referring him to the Anderson County Clerk.
The Attorney General has consistently recognized that a public agency cannot provide a requester access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6. Nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005)("before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist"); 11-ORD-091; 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. Although the City erred insofar as it cited the litigation being contemplated as the basis for initially failing to respond, it ultimately did more than was required under the Act in providing some requested information (as opposed to public records) and issuing written responses to questions. The City cannot produce that which it does not have.
Either party may appeal this decision may appeal 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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