Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Spencer County Attorney Kenneth S. Jones initiated this appeal by letter dated September 15, 2016, challenging the denial by (former Spencer County Attorney) Ruth Hollan of his September 8, 2016, request for "all account receivables, account payables and receipt books associated with the Spencer County Attorney's bad check program in 2013 and 2014." In a timely written response, Ms. Hollan, a private attorney, advised Mr. Jones that she was enclosing a copy of her May 19, 2015, letter "with regard to the bad check program. . . . I cannot give you what I do not have. I do not have any receipt books or other information pertaining to the bad check program for the period you are seeking." 1 On appeal Mr. Jones acknowledged that a public agency cannot provide a nonexistent record for inspection or copying, but asserted that "exception" does not apply "to documents that did exist," but which the agency "destroyed or lost." Mr. Jones further observed that "partial payments of bad checks" would have necessarily been deposited "in an escrow account," records of which Ms. Hollan could provide; also, "full deposits would have been deposited in a regular checking account, and the retailer would be issued a restitution check." Although Mr. Jones' assertion is correct regarding the loss or premature destruction by a public agency of public records, the Attorney General is unable to find that Ms. Hollan violated the Open Records Act in the disposition of his request given that she is no longer the Spencer County Attorney, i.e. , a "public agency" under KRS 61.870(1)(a), nor does a private attorney such as Ms. Hollan otherwise fall within the parameters of KRS 61.870(1). 2
In relevant part, KRS 61.872(1) provides that "[a]ll public records shall be open for inspection by any person . . . and suitable facilities shall be made available by each public agency for the exercise of this right." Pursuant to KRS 61.870(2), "public record" means:
all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency . "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority.
(Emphasis added.) Resolution of this appeal turns on the dispositive question of whether Ms. Hollan is a "public agency" within the meaning of KRS 61.870(1), which broadly defines public agency to include:
(a) Every state or local government officer;
(b) Every state or local government department, division, bureau, board, commission, and authority;
(c) Every state or local legislative board, commission, committee, and officer;
(d) Every county and city governing body, council, school district board, special district board, and municipal corporation;
(e) Every state or local court or judicial agency;
(f) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;
(g) Any body created by state or local authority in any branch of government;
(h) Any body which derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds. However, any funds derived from a state or local authority in compensation for goods or services that are provided by a contract obtained through a public competitive procurement process shall not be included in the determination of whether a body is a public agency under this subsection;
(i) Any entity where the majority of its governing body is appointed by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (j), or (k) of this subsection; by a member or employee of such a public agency; or by any combination thereof;
(j) Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff, established, created, and controlled by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (k) of this subsection; and
(k) Any interagency body of two (2) or more public agencies here each public agency is defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection[.]
There is no question that a county attorney is a "public agency" under KRS 61.870(1)(a) or that records "prepared, owned, used, in the possession of or retained by" a county attorney fall within the parameters of KRS 61.870(2); such records are subject to disclosure unless exempt under KRS 61.878(1). However, Ms. Hollan is the former Spencer County Attorney. A private attorney such as Ms. Hollan is not a "public agency" under KRS 61.870(1)(a) and the remaining definitional sections are facially inapplicable to her; accordingly, provisions of the Open Records Act currently have no application to her. See 05-ORD-249; 07-ORD-114; 12-ORD-100; 14-ORD-141.
In light of KRS 61.870(1) and (2), the Office of the Attorney General has consistently recognized:
There are two legal thresholds which must be crossed by a person seeking to compel access to documents under the Open Records Law, KRS 61.870 to 61.884; (1) the custodian of the records must be a "public agency" as defined in KRS 61.870(1), and (2) the documents to be inspected must be "public records" as defined in subsection (2) of the same statute. Unless and until those thresholds are crossed it is not necessary to consider the provisions of the law pertaining to exemptions (KRS 61.878) or pertaining to an unreasonable burden in producing voluminous public records (KRS 61.872(6)).
OAG 82-27, p. 3 (overruled on other grounds in OAG 82-277); 99-ORD-202; 16-ORD-019. As a private attorney, rather than a "state or local official," (KRS 61.870(1)(a)) Ms. Hollan is no longer subject to provisions of the Open Records Act nor can this office find her disposition of Mr. Jones' request a violation of the Open Records Act. 3
Given the unusual posture of the instant appeal, this office is compelled to note that KRS 61.8715 recognizes "an essential relationship between the intent of [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records . . .; and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage their records according to the requirements of these statutes." Included among "these statutes" is KRS 171.680(1), pursuant to which "[t]he head of each state or local agency [is required to] establish and maintain an active, continuing program for the economical and efficient management of the records of the agency." KRS 171.680(1) is premised on the "widely held, if not axiomatic, view that '[a] written memorial of a transaction in a public office, when made by a public officer, becomes a public record belonging to the office , and not his private property.' 76 C.J.S. Records § 2." 07-ORD-020, p. 6. In other words, "[a]n officer who has public records in his or her charge is the mere custodian of those records . . ., the records are not the private property of the officer." 66 AmJur2d, Records and Recording Laws § 5; 07-ORD-020. "The overwhelming weight of legal authority therefore recognizes that '[w]here an officer, duly elected or appointed to office and qualified, demands of his or her predecessor the records pertaining to the office and is refused,' 'mandamus will lie to compel the delivery of books and paper belonging to the office .' McQuillin Mun Corp § 14.21 (3rd Ed.)(emphasis added)." 07-ORD-020, p. 6. Assuming that any responsive documents were created or currently exist, and have been improperly lost or destroyed, Mr. Jones' relief does not lie in this forum. See 16-ORD-123.
Because the requester in this case is the current officeholder, i.e . a public agency under KRS 61.870(1)(a), and the actions of his office have not been challenged nor does the record on appeal contain any suggestion that his administration has lost or prematurely destroyed any public records, a referral for additional inquiry as the Kentucky Department for Libraries and Archives ("KDLA") may deem appropriate is unwarranted. However, KDLA has advised that a representative will contact Mr. Jones to consult with him and ensure that appropriate records management and retention practices are being followed in order to avoid the potential for any future issues of this nature.
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 must not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Mr. Jones did not include a copy of the referenced May 19, 2015, letter among the attachments to his appeal; however, upon receiving notification of Mr. Jones' appeal from this office, Ms. Hollan provided a copy of that letter, directed to a Jay Scott, among other correspondence. In that letter Ms. Hollan advised that her office "did not have a ledger or computer program as this was a very small service my office offered. We had very few merchants who utilized this service." Ms. Hollan further explained that when she was the Spencer County Attorney her office "had a staff of one. We used whatever receipt book that was available and sometimes gave [handwritten] notes in the courtroom when the judge asked if the defendant could make the check good then and there." The record on appeal does not contain any evidence to refute her position and records creation issues cannot be resolved in this forum.
2 Even if Ms. Hollan were currently a public agency, she could not produce that which she does not have nor is a public 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 complainant. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005); 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; 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 ("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"). Although certain Records Series identified on the County Attorney Records Retention Schedule , namely L2884 (Check Copy File), L2885 (Merchant Invoice), L2932 (Cold Check Ten-Day Letter), and L2933 (Cold Check Database), are implicated here, the record on appeal is unclear as to which, if any, of such records were created and maintained to begin with; further, the applicable retention periods and disposition instructions only govern existing records matching the descriptions provided. See 10-ORD-187.
3 This office has consistently recognized that "lack of actual possession is not a sufficient basis for denying access to records" if the records being sought are being held "at the instance of and as custodian on the [public agency's] behalf[.]" 08-ORD-206, pp. 7, 13; See 00-ORD-207 (settlement agreement in physical custody of insurance carrier); 04-ORD-123 (drainage records in physical custody of City's independent attorney); 05-ORD-015; 06-ORD-147; 16-ORD-019. Our holding today does not depart from this line of authority; rather, the instant case is distinguishable as the requester did not seek records of a "public agency."