Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Investigative Reporter Kate Howard, Kentucky Center for Investigative Reporting ("Center"), initiated this appeal by letter dated August 10, 2016, challenging the actions of the University of Louisville Foundation ("Foundation") relative to her August 1, 2016, request to "inspect and/or copy" the following:
. All real estate appraisals related to a property in Sapulpa, OK, including but not limited to 2010 appraisals conducted by Walton Property Services and Green County Appraisal Services[;]
. March 31, 2014 engagement letter to Strotham [& Co.;]
. Any/all invoices since 2013 for payment to Strothman [& Co.; and]
. All board documents/presentations etc. from the April 2014 meeting.
By letter dated August 5, 2016, Records Custodian Kenyatta Martin responded on behalf of the Foundation. Partially quoting KRS 61.872(5), Ms. Martin advised, "The records you have requested are in storage, in active use or otherwise not readily available. The Foundation is in the process of retrieving and reviewing potentially responsive public records. I will contact you by August 22, 2016, regarding any responsive public records the Foundation identifies." On appeal Ms. Howard challenged the Foundation's failure to "specify what the records were inaccessible or why additional time was needed." Citing prior decisions of this office, Ms. Howard asserted that the Foundation violated the Act in failing to "either provide the requester with access to all existing responsive documents" within three business days per KRS 61.880(1) "or cite the applicable statutory exception(s) and explain how it applied to any records being withheld."
Upon receiving notification of Ms. Howard's appeal from this office, attorney David E. Saffer responded on behalf of the Foundation. Mr. Saffer advised that Ms. Martin supplemented the Foundation's August 5, 2016, response by letter dated August 25, 2016, a copy of which Mr. Saffer attached. With regard to item 1 of Ms. Howard's request, the Foundation acknowledged "that two appraisals of the subject property were conducted in September 2010, one each by Walton Property Services, LLC and Green County Appraisal Services." Because the Foundation did not rely on these appraisals, however, "the Foundation was never provided with a copy of either of these appraisals, and further, the Foundation did not ask for a copy of either appraisal. " Rather, the Foundation "relied on the valuation report performed by Strothman & Co. dated April 17, 2014 [("Valuation Report" ),] . . . because it was purchasing an interest in Sapulpa Real Estate Holdings LLC, not in the real estate, and the Valuation Report established a value for that interest." Ms. Martin enclosed a copy of the Valuation Report.
With regard to items 2 and 3, the Foundation advised Ms. Howard that "no responsive records exist. Strotham & Co. was engaged by the University of Louisville ["University"], not the Foundation. I recommend directing your request to the custodian of records for the University of Louisville." The Foundation advised that "all documents and presentation materials from the April 2014 Foundation board meeting as well as the April 2014 University Holdings, Inc. board meeting" were attached in response to item 4 of the request. Based upon the following, this office finds the Foundation's initial response procedurally deficient but affirms the Foundation's ultimate disposition of Ms. Howard's request.
In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . 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." A public agency cannot generally postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d, 1035, 1041 (9th Cir. 1999); 01-ORD-140. For this reason, the Act "contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply." 01-ORD-140, pp. 3-4. Accordingly, the only provision of the Act that authorizes postponement of access to public records beyond three business days, KRS 61.872(5), provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
The Foundation issued a written response within three business days per KRS 61.880(1), and expressly invoked KRS 61.872(5); the Foundation also provided a date by which records would be made available, but failed to provide a "detailed explanation," as required to successfully invoke KRS 61.872(5). See 02-ORD-217 (agency response that complying with request "will be a very time-consuming task since you are requesting records that date back to 1998" was not sufficiently detailed as it set forth "neither the volume of records involved nor explain[ed], in detail, the problems associated with retrieving the records implicated by the request"); 12-ORD-043; 13-ORD-168. Even assuming the records being sought were "in active use, in storage or not otherwise available," the Foundation did not identify which of these permissible reasons for delay applied, if any, or to what extent. See 12-ORD-211; 13-ORD-074; 15-ORD-174. Merely stating that records are "in use" or "in storage" does not constitute a "detailed explanation of the cause . . . for further delay." 15-ORD-029, p. 2. "If merely reciting these phrases were sufficient, the statute's requirement of a 'detailed explanation' would be meaningless. 'Under the rules of statutory construction, no part should be construed as meaningless or ineffectual.' Lexington-Fayette Urban County Gov't v. Johnson, 280 S.W.3d 31, 34 (Ky. 2009)." 15-ORD-029, pp. 2-3.
Here, the only additional information provided was that the Foundation was "in the process of retrieving and reviewing potentially responsive public records. " This did not constitute a detailed explanation as "[t]he need to review and redact records pursuant to KRS 61.878(4) is an ordinary part of fulfilling an open records request. It does not, in and of itself, constitute a reason for additional delay." 15-ORD-029, p. 3; 12-ORD-227; 14-ORD-047; see also 10-ORD-138 ("the record on appeal, being devoid of any detailed explanation for why the retrieval and redaction should take so long, does not support the [agency's] position that the delay is necessary"). On appeal the Foundation made no attempt to remedy this deficiency. "In the absence of a legitimate detailed explanation of the cause for delaying access" for approximately three weeks, the Attorney General finds that Ms. Howard "did not receive 'timely access' to the records eventually provided." 13-ORD-052, pp. 6-7; 15-ORD-141. However, Ms. Martin ultimately provided Ms. Howard with all existing responsive documents in the possession of the Foundation and explained the nonexistence (or lack of possession) of the remaining documents.
The right to inspect records, and the corollary right to receive copies, only attaches if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. A public agency cannot produce that which it does not have 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-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 their existence could be presumed) ; 07-ORD-188; 16-ORD-134; 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" ); 11-ORD-074 (recognizing that the "existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable"); 12-ORD-195. 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, nor is the Attorney General "empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." 08-ORD-206, p. 1; 12-ORD-231.
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 advising that records being sought do not exist following a reasonable search, and explaining why, if appropriate. 98-ORD-154, p. 2 (citation omitted); 16-ORD-172. The Foundation has explained the reason that no appraisals responsive to item 1 exist in the custody or possession of the Foundation and provided Ms. Howard with a copy of the potentially responsive Valuation Report; likewise, the Foundation briefly explained why a request for documents responsive to item 2 should be directed to the University. 1 In addition, the Foundation also provided all existing documents responsive to item 4 of Ms. Howard's request. In the absence of any facts or evidence from which the existence of additional responsive documents within the possession of the Foundation can be presumed, this office has no basis upon which to find that a substantive violation was committed. See 16-ORD-189. With the exception of the noted procedural violation, the Foundation's disposition of Ms. Howard's request is affirmed.
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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