Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Keith Vogt initiated this appeal by letter dated July 26, 2016, alleging that the Department of Revenue ("Department") violated the Open Records Act in failing to issue a timely written response upon receipt of his July 7, 2016, request "copies of records in relation to Case 810000005446," namely the following:
1. Names and business addresses of the members of the [Department] and other people attending the meeting(s) in Case Number 8100000015446[;]
2. Votes of the individual members on Case Number 8100000015446[;]
3. Notes of the meeting(s) [in] which Case Number 8100000015446 was discussed[;]
4. A copy of the resolution of the [Department] authorizing the lien in Case Number 8100000015446 to be recorded with the County Clerk [;]
5. Copy of the county clerk filing receipt for Case Number 8100000015446[;]
6. Mailing receipts, courier logs showing how the document was delivered to the county clerk for Case Number 8100000015446[;]
7. Copy of the oath or statement of duty of the [Department] members.
Upon receiving notification of Mr. Vogt's appeal from this office, Staff Attorney Katherine J. Fitzpatrick responded on behalf of the Department. Ms. Fitzpatrick initially explained that Mr. Vogt's request was incorrectly addressed to "Kentucky Revenue Cabinet, Custodian of Records, 200 Fair Oaks Lane, Frankfort, KY 40601." The Department moved to its present location at 401 High Street in 2007. Ms. Fitzpatrick noted that Mr. Vogt is aware of the current address, "having exchanged frequent correspondence with the Department as recent as February 2016." The United States Postal Service Tracking Information attached to Ms. Fitzpatrick's response confirms that Mr. Vogt's request was delivered via Certified Mail to the Department's former address on July 13, 2016, but was not received at 401 High Street, its current address, until July 21, 2016. Open Records Coordinator Adrienne B. Ernst issued a timely written response on July 26, 2016, a copy of which Ms. Fitzpatrick also included. Because the delay in processing Mr. Vogt's request was attributable to his own error, and the Department issued a written response within three days, excluding weekends and holidays, per KRS 61.880(1) once it actually received his request on July 21, 2016, this office has no basis upon which to find that the Department violated the Open Records Act from a procedural standpoint. See 10-ORD-185. Based upon the following, this office finds that the Department's July 26, 2016, response was also substantively correct.
With regard to items 1-3 and 6 of Mr. Vogt's request, Ms. Ernst advised that the Department was unable to comply because no such records existed. Citing prior decisions by this office, Ms. Ernst correctly observed that a public agency cannot provide a requester with access to nonexistent records or those which it does not possess. More specifically, Ms. Ernst advised with regard to items 1-3 "that no meetings were held by [Department] personnel regarding Collections Case Number 8100000015446. Also, in the regular course of business, [Department personnel] do not generally hold meetings on Collections cases." In further explaining the nonexistence of records that would conform to item 6, Ms. Ernst advised that "once liens are printed, they are hand stuffed into mailing envelopes and sent to the respective County Clerks' Offices via regular postal mail. The envelopes are not traced and the mailings are not logged."
With regard to item 4 of the request, Ms. Ernst advised Mr. Vogt that she was enclosing "copies of the Notices sent to you prior to the recording of the lien associated with Collections Case Number 810000005446 as well as the letter which was mailed to you at the same time the lien was mailed" to the Jefferson County Clerk's Office to be recorded. Ms. Ernst further explained that "for the 'Final Notice Before Seizure' letter, which is a Notice that is sent by Certified Mail," she was also enclosing a copy of the documentation showing when the letter was delivered and who accepted service of the mailing on his behalf. Despite having no statutory obligation to answer questions or explain the content of records provided, Ms. Ernst outlined "the basic procedure which precedes the recording of a lien." Having done so, Ms. Ernst advised that the Department's "collections system can automatically generate these liens to be recorded once a collections case reaches this stage, as was the case with the lien" in the referenced case. Accordingly, no records in the possession of the Department are directly responsive to item 6; however, Ms. Ernst provided the "documents which lead up to the recording of the lien," as those come the closest to being responsive. To the extent Mr. Vogt was requesting a copy of the statute authorizing the Department to file the lien, Ms. Ernst correctly noted that such a request falls beyond the scope of the Act, citing KRS 61.870(2) as construed in prior decisions by this office. 1 Nevertheless, Ms. Ernst explained that a representative of the Division of Collections would be able to provide such information and to answer questions relating to his case, noting that contact information for the Division was contained in the attached letters. Ms. Ernst also provided Mr. Vogt with a link to the Legislative Research Commission's website from which all of the Kentucky Revised Statutes can be accessed.
With regard to item 5, Ms. Ernst advised that the Department "does not receive receipts for the liens which are filed with the county clerks' offices"; however, she enclosed a copy of the recorded "Notice of Lien." Ms. Ernst explained that the "file stamp in the lower right hand side of the 'Notice of Lien' showing when and by whom the 'Notice of Lien' was recorded is the closest document to a receipt that the Department has in its possession." Additionally, Ms. Ernst provided Mr. Vogt with a copy of the "recorded lien release evidencing that the lien associated with Collections Case Number 8100000015446 has been released by the Department[.]" Finally, with regard to item 7, Ms. Ernst explained "that there is no oath or statement of duty required for [Department personnel] and as such, there are no records which would be directly responsive to this request; however, all employees of the [Department] are required to sign an Acknowledgement of Confidentiality as a condition of their employment." Ms. Ernst enclosed a copy of said Acknowledgement. The Department also waived the charges associated with providing the records and returned Mr. Vogt's check to him.
This office first notes that items 1-3 of Mr. Vogt's request improperly sought information as opposed to public records. Early on, this office clarified that "[t]he 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; 04-ORD-144; 10-ORD-156. Accordingly, the Attorney General has consistently recognized that the "public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information." 04-ORD-080, p. 13, citing OAG 87-84. Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id. p. 5, OAG 91-12, p. 5. See 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.) Rather than simply deny Mr. Vogt's request as to items 1-3 on that basis, the Department credibly explained the reason that no such records exist.
A public agency is only able, in lieu of denying a request for information, to make any non-exempt records that may contain the information being sought available for inspection or copying if such records were created and currently exist in the possession or control of the agency. 10-ORD-156, p. 3; 14-ORD-073. The Department provided Mr. Vogt with all existing documents potentially responsive to each item of his request and fully explained why no additional documents exist rather than simply denying access. The Department cannot produce nonexistent records for inspection or copying; 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"); 07-ORD-188; 12-ORD-087; 14-ORD-145. The Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2).
To satisfy its burden of proof under KRS 61.880(2)(c), however, a public agency must explain why it cannot produce the records being sought and under what authority the records were destroyed if appropriate. 11-ORD-104, p. 5. See 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" ). In order to ensure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective," Bowling at 341, this office has recognized that "the existence of a statute, regulation, or case law directing the creation of the requested record" creates a rebuttable presumption of the record's existence at the administrative level, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4; 12-ORD-038. No such authority has been cited or independently located here. See 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 existence of same could be presumed); 12-ORD-037; compare 12-ORD-195. When, as in this case, a public agency denies that additional records exist, and the record on appeal supports rather than refutes that contention, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9. No prima facie showing has been made nor has any evidence been presented to suggest that additional responsive documents were created or maintained; accordingly, the Department's thorough disposition of Mr. Vogt's request is affirmed. See 12-ORD-183.
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 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.
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