Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Mason County Board of Education failed to meet its burden of proof in denying Michael H. Ross's repeated requests for a copy of the "audit report and all related documents performed by Suzan [sic] Ross and her associates," 1 at the behest and expense of the Board, based on the Board's claim that it did not now, and had never, possessed a copy of the audit. In reaching this conclusion we rely on 16-ORD-161, copy enclosed, and the authorities cited therein.
Although the Board ultimately provided records demonstrating that it authorized the audit by resolution in December 2012, and paid in excess of $ 25,000.00 for its completion, the Board largely refused to respond to questions propounded under authority of KRS 61.880(2)(c), 2 characterizing the questions as requests for information that it was under no legal obligation to honor. Unable to ascertain why the Board did not have a copy of the audit it had authorized and for which it had paid, we asked:
1. Did the Mason County Board of Education authorize an audit at a board meeting?
2. If so, did the board pay for the audit, and, if so, what amount?
3. Was the audit completed?
4. If so, were the audit results shared with the board members, and, if so, by what means (e.g., presented at a board meeting; a copy submitted to the board members but returned to Ms. Ross; by memorandum or other communication, electronic or written; at a nonpublic meeting in which the audit was discussed but a copy not circulated)?
5. Assuming, for the sake of argument, that the board did not authorize the audit but an audit was nevertheless conducted under the auspices of another public agency, state or federal, was a copy presented to the Mason County Board of Education, or any representative thereof, and if not, why not?
6. If an audit was conducted, why does the board, the district, or any employee, official, member, or attorney for the board deny possession of a copy?
The Board refused to respond to requests 3, 4, 5, and 6 either in whole or in part frustrating this office's ability to meaningfully review the issue on appeal.
In 16-ORD-161, this office rejected the University of Kentucky's denial of a request for records relating to complaints of sexual harassment leveled against a professor with whom the University had entered into a settlement agreement under the terms of which the professor resigned. Resolution of that appeal turned on the University's refusal to respond to questions propounded by this office under authority of KRS 61.880(2)(c). Quoting KRS 61.880(2)(c), we observed:
Within a single sentence, the legislature assigns the burden of proof to the agency resisting disclosure and invests the Attorney General with the authority to "request additional documentation for substantiation ." (Emphasis added. ) The University's refusal to honor the Attorney General's requests suggests that it views these requests as either adversarial or a form of "advoca[cy] for the requester," or both. [Footnote omitted.] The juxtaposition of the assignment of the burden of proof to the agency and the Attorney General's authority to request additional documentation "for substantiation" establishes the contrary. As we observed at page 2 of 12-ORD-220, "when denied the opportunity to review the [disputed] records [or documentation necessary 'for substantiation' ] 'the Attorney General's ability to render a reasoned open records decision [is] severely impaired.'" Citing 96-ORD-106, p. 5 and 10-ORD-079, p. 5. Such is the case in the appeal before us. It is the Attorney General's duty to conduct a meaningful review and issue an informed and reasoned decision, guided by the statutorily assigned agency burden of proof.
In clear and irrefutable support of our position, we cite
Cabinet for Health and Family Services v. Todd County Standard, Inc., 488 S.W.3d 1 (Ky. App. 2016). A copy of that case is enclosed. In that case the Kentucky Court of Appeals strongly criticized the Cabinet's refusal to respond to questions, propounded by this office under authority of KRS 61.880(2)(c), relating to its claim that it maintained no records relating to a neglected and abused child who was brutally murdered by her adopted brother.
The court severely admonished the Cabinet for its:
Blatant[] refus[al] to respond to the Attorney General's specific questions as to the Cabinet's prior involvement with A.D. or with her family. It is highly probable that if the Cabinet had responded truthfully to these questions the existence of the records relating to A.D. would have been revealed. By refusing to respond to the Attorney General's questions, the Cabinet certainly frustrated the Attorney General's statutory review under KRS 61.880 . . . .
Todd County Standard, 488 S.W.3d 1 at 8. Summarizing its position, the court declared that an agency "cannot benefit from intentionally frustrating the Attorney General's review of an open records request; such result would subvert the General Assembly's intent behind providing review under KRS 61.880(5)." Todd County Standard, 488 S.W.3d 1 at 8. See also, 16-ORD-113 and 16-ORD-133.
As in 16-ORD-161, "the Attorney General's duty to conduct a meaningful review and issue an informed and reasoned decision, guided by the statutorily assigned agency burden of proof" must not yield to a noncompliant agency. We therefore find that the Mason County Board of Education failed to meet its burden of proof in denying Mr. Ross's request for a copy of the audit based on its claim that it never possessed a copy of the audit, and must, at a minimum, provide in writing complete answers to all of the questions propounded by this office so as to resolve the issue on appeal, specifically why the Board is unable to provide Mr. Ross with a copy of the audit it authorized and for which it paid in excess of $ 25,000.00.
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 must 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. Ross also asked for information such as the names of, and amounts paid by, any current or former employees that made restitution to the school district as a result of investigations by Susan Ross and other investigatory agencies. The Board properly denied these requests as improperly framed requests for information as opposed to properly framed requests for existing public records. See, e.g., 14-ORD-130 and authorities cited therein (affirming agency denial of request for information based on the statutory recognition that "the law provides for inspection of reasonably identified records"). A copy of 14-ORD-130 is enclosed.
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.)