Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Powell County Clerk ("Clerk" ) violated the Open Records Act by initially failing to respond to a request for records from the Superintendent for Powell County Schools and the Counsel for the Powell County Board of Education. For the reasons stated below, we find that the Clerk violated KRS 61.880(1) by failing to respond to the request in a timely manner; failed to timely notify the requesters that it did not possess the requested records; and failed to timely direct the requesters to the appropriate custodial agency, per KRS 61.872(4).
Donna Hale, Counsel for Powell County Board of Education, and Michael Tate, Superintendent for Powell County Schools, submitted a request for public records to the Powell County Clerk, Rhonda Barnett. The request was stamped: "Filed at 4:00 p.m. Jan 18 2017 Powell County Rhonda Allen Barnett."
The specific requests were:
1. Mendel Tipton's Nominating Petitions for 2006, 2010 and 2014.
2. Certified Election Results for 2006, 2010 and 2014.
3. Any written requests made by the Powell County Clerk or her deputies for the School District to provide maps for the school board's division/districts for the years 2011 to the present.
Ms. Hale and Mr. Tate submitted their Open Records appeal on February 1, 2017, stating: "More than three (3) working days have elapsed and no response in writing or otherwise has been received by the requesting parties. It appears the clerk has ignored the open records request and/or refused to provide a written response..." A copy of the appeal was sent to Rhonda Barnett, Powell County Clerk, and to Robert King, Powell County Attorney. On February 8, 2017, Mr. King submitted a response to the appeal stating:
1) That Powell County Clerk Rhonda Barnett states that she was unaware an open records request had been made in this matter until such time as she received notice of the appeal to the Attorney General's office. She received said notice on February 7, 2017;
2) That the Powell County Clerk's office intends to comply with the open records request. Any and all records maintained by the Powell County Clerk's office that were requested will be made available for inspection;
3) That at present, only the nominating petition for Mendel Tipton dated 2014 is in the custody of the Powell County Clerk's office. All other documents requested in the Open Records Request are not kept by the Powell County Clerk's office longer than 22 months. The Powell County Clerk's office is trying to ascertain whether the Kentucky Board of Elections or the Kentucky Secretary of State has the documents requested. If so, in spite of the fact that the Powell County Clerk's office does not feel that it is the official custodian of those records, and that the request for inspection of documents was made upon the wrong public entity, it will provide the documents.
We first note that Mr. King states that Ms. Barnett was not aware of the Open Records request until she received notice of the appeal. In direct contradiction to Mr. King's statement that the Clerk was not aware of the request is the fact that the copy of the request provided to this office clearly has the Clerk's date stamp on it to show that it was received by her office on January 18, 2017. Neither Mr. King, nor the Clerk, have offered an explanation as to why the Clerk would not have been aware of a records request that bears a date stamp from her office. Having received no explanation from the Clerk or Mr. King to rebut the clear evidence of receipt, we cannot ignore the evidence that shows the Clerk received the request on January 18, 2017. KRS 61.880(1), in relevant part, provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request 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.
The Clerk had three days after the date of receipt to determine whether to comply with the request and notify the requesters of her decision. The Clerk's failure to respond to the records request within three days after receipt constitutes a violation of KRS 61.880(1).
Likewise, it was incumbent upon the Clerk to notify the requesters of whether she even had possession of the requested records. Mr. King's response states that only one of the requested records is still in the possession of the Clerk, but that the other records are not. As the Attorney General has consistently recognized, 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. In addressing the obligations of a public agency when denying access to public records for this reason, the Attorney General has observed that a public agency's "inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms ." 01-ORD-38, p. 9 (other citations omitted). In short, "[i]f a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4; 14-ORD-225. KRS 61.880(2)(c) states that the burden of proof in denying a request is on the public agency. In order to satisfy the burden of proof imposed by KRS 61.880(2)(c), a public agency must offer some explanation for the nonexistence of the requested records (or lack of custody, as the case may be) at a minimum. See 04-ORD-075 In this instance, Mr. King explained that the Clerk no longer has copies of most of the requested records, but has not explained why the Clerk only retained some of the requested documents for 22 months. In order to fully meet its burden of proof for the nonexistence of the records, the Clerk should have also explained the basis for the 22-month retention period.
Finally, when the "person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. " KRS 61.872(4). Mr. King's response to the records request belatedly attempts to satisfy KRS 61.872(4) by providing the names, but not the locations, of other agencies that may have custody of the records requested. See 08-ORD-043. It is incumbent upon the Clerk to provide, to Ms. Hale and Mr. Tate, the names and addresses of the agencies that she believes may be the custodians of the records.
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 should not be named as a party in that action or in any subsequent proceeding.