Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
Lawrence Trageser sent a request, dated October 19, 2016, to the Spencer County Sheriff's Office requesting "any and all records reflecting a contract, agreement, retainer or request for legal services by Spencer County Sheriff Buddy Stump with Attorney Thomas Clay. The contract, agreement, etc., would involve Sheriff Buddy Stump filing legal action against Spencer County Fiscal Court over alleged mold and an unsafe working environment in the sheriff's office." 1 Major Carl Reesor, Spencer County Sheriff's Office, responded by letter dated October 20, 2016: "After careful review of the sheriff's office documents and conversing with the Sheriff, I have determined that no records exist as to your request for any and all records reflecting a contract agreement, retainer or request for legal services regarding Thomas Clay."
Mr. Trageser appealed that response on October 31, 2016, wherein he observed that "...a document(s) should exist, because the lawsuit does exist and thus, an agreement between Sheriff Stump and Attorney Thomas Clay must exist for this lawsuit to have been created and acted upon by both of these mentioned parties..." Mr. Trageser provided a copy of a "Verified Petition for Writ of Mandamus" and a "Motion for Temporary Injunction and Emergency Hearing," filed October 14, 2016, in Spencer Circuit Court by Thomas Clay, P.S.C., as counsel for plaintiff, Buddy Stump, Spencer County Sheriff. The documents detailed events wherein the Sheriff's physical offices were allegedly found to have environmental hazards that led to the Sheriff's Office's mobile command center being used as temporary office space, and the Fiscal Court's actions, or inactions, in addressing the Sheriff's Office's needs for offices.
In a similar situation (15-ORD-210) regarding the University of Kentucky's response to an inmate's request for records, this office found that response was deficient "insofar as it did not offer any explanation for the nonexistence of the records being sought notwithstanding the fact that certain of the records' existence [could] be presumed in light of existing legal authority mandating their creation." At page 3 of that decision, we observed:
The Attorney General has consistently recognized that a public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Rather, the right to inspect attaches only 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. In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), however, public agencies must offer some explanation for the nonexistence of the requested records at a minimum. See 01-ORD-38; 04-ORD-075; 12-ORD-231.
Past decisions of this office have recognized 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." 11-ORD-074, p. 2; 12-ORD-195. The agency can overcome this presumption by explaining why the record does not exist. Id. In Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011), the Kentucky Court of Appeals approved this position, 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. " See 12-ORD-195. Where, as in this appeal, "the existence of the records in dispute is postulated on existing legal authority or facts in evidence rather than speculation," this office found that a public agency's response "was deficient, inasmuch as it offered no explanation for the nonexistence of the record(s) in dispute notwithstanding legal authority mandating creation of such a record(s)[.]" 11-ORD-111, pp. 3-4; 11-ORD-074, pp. 3-5; compare 12-ORD-209.
15-ORD-210 is legally and factually distinguishable from this appeal. Mr. Trageser has identified no statute, regulation, rule, or case law requiring the creation of a written contract or agreement regarding Thomas Clay's representation of the Spencer County Sheriff's Office. Accordingly, there is no presumption that a written agreement, as requested by Mr. Trageser, exists. Because no statute, regulation, rule, or case law mandating a contract or agreement has been identified, and because the Sheriff's Office conducted an adequate but unsuccessful search for a written agreement and properly notified the requester that no responsive record exists, we find no violation of the Open Records Act based on the Sheriff's Office's denial of Mr. Trageser's request. The Sheriff's Office is not obligated to explain the nonexistence of a record that does not presumptively exist.
A party aggrieved by this decision may appeal it 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 must not be named as a party in that action or in any subsequent proceeding.
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