Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Burgin violated the Open Records Act in the disposition of an undated request from James Caldwell for fifteen separate records. The City received the request on January 13, 2017, and responded by letter to Mr. Caldwell on January 26, 2017. The City provided Mr. Caldwell with copies of many of the records but claimed that there were no responsive records for several of the requests. On appeal, Mr. Caldwell claims that the city withheld records responsive to five of the requests he made, and he provided supplemental correspondence on February 20, 2017, to explain how the City failed to comply with his requests. The items in controversy are set forth and analyzed below:
Request # 2 . "Officer Rucker filmed the 1/10/17 council meeting with his lapel camera. Please provide that complete video."City's Response: "Officer Rucker checked and it hadn't recorded the meeting." Mr. Caldwell, in supplemental correspondence of February 20, 2017, stated that "Its [ sic ] my understanding that he intended to [record the meeting] but suffered an equipment malfunction."
The Attorney General has consistently recognized that a public agency cannot provide a requester with access to nonexistent records or those that 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), public agencies must, at a minimum, offer some explanation for the nonexistence of the requested records. 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. " 1 12-ORD-195, p. 5. Mr. Caldwell himself has offered an explanation for the apparent unavailability of the record and we find that the City's explanation, in combination with Mr. Caldwell's understanding of the reason for the recording's nonexistence, was sufficient to explain the absence of the recording, though only marginally. In this instance, we find no violation of the Open Records Act.
Request No. 9 . "Any job task analysis created by the City for any positions."City's Response: "Attached."Mr. Caldwell's supplemental correspondence stated that "You provided a job description for police officer. I requested a Job task analysis. These are very different things. If it helps the city of Burgin has never done a job task analysis I am simply seeking confirmation of this fact. [ sic ]"
Under the circumstances presented in this request, Mr. Caldwell did not have a legitimate expectation that the records would be provided and the City cannot be faulted for not providing the records requested. However, the City committed error when it stated that those records were "Attached. " The better course of action would have been for the City to explain that the records do not exist. Under these circumstances we find a procedural violation of KRS 6.880(2)(c) for its failure to explain that the requested records do not exist and, instead, claiming that the records were provided.
Request No. 10 . "Copies of all physicals required by the city for any work related injury/return to duty properly redacted. Please include the fire department records."City's Response: "Will have Mr. James Caldwell come in and look at documents and decide what he wants copied."Mr. Caldwell's supplemental correspondence states that ". . .I am aware that on multiple occasions over the last twenty one years fire fighters of the burgin fire Dept have been treated for work related injuries that required medical clearance before they were allowed to resume their duties. [ sic ]"
Mr. Caldwell claims that he did not receive the fire department physicals. The Open Records Act contemplates access to records "by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail." KRS 61.872(3), 03-ORD-067, p. 4; 09-ORD-106. Therefore, a requester who lives in the same county where the public records are located may be required to inspect the records prior to receiving copies. As Mr. Caldwell lives in the same county where the records are located, the City was permitted to require him to conduct onsite inspection of records potentially responsive to his request prior to furnishing copies. See 08-ORD-132; 09-ORD-106. There is nothing in the record regarding whether Mr. Caldwell visited the City offices specifically for the purpose of deciding which records he desired, but we know that the City was willing to offer him that opportunity, and that he visited the City offices on more than one occasion after submitting his request. On these facts, we cannot find that the City violated the Act by not producing the fire department physicals.
Request No. 14 . "Any grievance filed by me including the city's response if any."City's Response: "Attached."Mr. Caldwell's supplemental correspondence states that the City failed to provide "a grievance filed 8/15/15, and a grievance filed 1/13/17 and failed to provide any response by the city to any grievance. Please provide the requested documents and if there is no city response please state that. [ sic ]"
Based on Mr. Caldwell's personal knowledge of having filed at least two of the requested grievances 2, it is more likely than not that those grievances exist, or existed at one time, and so the City was obligated to either provide the records or explain their nonexistence and, by not doing either, violated KRS 61.880(2)(c).
Request No. 15 . "Officer Ruckers [ sic ] personnel file including discipline records from the City of Burgin. "City's Response: "Attached."Mr. Caldwell's supplemental correspondence complains that the response to "Item 15 was provided but is not complete. The record fails to include a complaint for insubordination filed in writing on 7/12/16. It also fails to provide any supporting documents with his application and his background check."
Here, the City has implicitly stated that it has provided all responsive records that exist. In our limited role as reviewer of denials of open records requests as provided by KRS 61.880(2)(a) , we are unable to resolve the factual dispute between Mr. Caldwell and the City as to whether all responsive records have been provided. In the "final analysis, we assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his[/her] request, and from the official custodian in providing the records which satisfy the request." Further, this office has consistently recognized that "it is not, in general, within our statutory charge to resolve questions of fact or to otherwise act as a trier of fact." Our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute," nor is this office "empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." Moreover, when some of the documents requested are disclosed, this office has generally declined to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." 12-ORD-065 (citations omitted). "Although the record on appeal once again 'strongly suggests' that additional records may, or even should have been created, ultimately the Attorney General has no basis to depart from that position . . .." 12-ORD-165. Accordingly, the record on appeal is insufficient to support a finding that the City of Burgin violated the Open Records Act in responding to Mr. Caldwell's request for disciplinary records of Officer Rucker.
In his supplemental correspondence, Mr. Caldwell also stated that he found no "assessment stating I should not return to work" in response to Request No. 4, for "any medical assessment of my physical condition in the city's possession." Mr. Caldwell expected the City to respond that it did not have a medical assessment stating that he should not return to work. The City's response to the request is "Attached," and we find that the City provided records that may be considered medical assessment records. As Mr. Caldwell did not narrow his request to the specificity he now desires, we can find no violation by the City in not addressing this subsequent request for an "assessment stating I should not return to work. "
As a final matter, the City's response to Mr. Caldwell's appeal, dated February 2, 2017, stated: "There are only 2 of us clerks working in City Hall and we are paid to work 22 hours per week each. Some of the regular work is time sensitive, such as paying bills, making tax payments, sending out quarterlies, W-2's, 1099's etc. When James Caldwell came to check on his request I explained this to him and said I would get to his request as soon as I could. [ sic ]" KRS 61.880(1) requires a public agency to make a determination within three business days whether to release the records, and, in the event of any denial, to "include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the records withheld. " The City's response to Mr. Caldwell's Open Records request is troubling as it fails to recognize the City's obligation as a public agency to comply with the requirements of the Act. As the City's response to the request was six business days beyond the three days statutorily allowed, that response was a violation of KRS 61.880(1).
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 shall be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
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