Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Katricia Rogers initiated this Open Records Appeal by letter dated May 26, 2017, challenging the disposition by the Letcher County Fiscal Court of her May 16, 2017, request for the "[d]ocument that Keith Adams presented to the fiscal court on Monday May 15th during the regular meeting. Keith stated the document had information stating that Katricia Rogers and/or Paul Rogers has a delinquent garbage bill account from a past address. " By separate letter dated May 26, 2017, Ms. Rogers also challenged the disposition by the Letcher County Fiscal Court of her May 19, 2017, request for a number of cancelled checks, identified with check numbers, from the General Fund and several others, for the fiscal year ending on June 30, 2017. Ms. Rogers directed both requests "To whom it may concern" at "Letcher County Fiscal Court." Letcher County Judge-Executive Jim Ward issued a timely written response to Ms. Rogers' May 16 request, using Fiscal Court letterhead, on May 19, advising that a review of the video recording of the Fiscal Court's May 15 regular meeting "demonstrates that Magistrate Adams did not 'present' a document as you allege. Furthermore, I am not the Records Custodian for documents individual magistrates bring to meetings of the Letcher County Fiscal Court." By letter dated May 24, 2017, within three working days of receipt1 per KRS 61.880(1), Judge-Executive Ward notified her that all of the requested checks would be available for inspection as of May 30. The record on appeal confirms that Ms. Rogers ultimately reviewed the requested checks; accordingly, the related issues are now moot per 40 KAR 1:030, Section 6,2 and our analysis will focus exclusively on the propriety of the Fiscal Court's disposition of Ms. Rogers' May 16 request.3
Upon receiving notification of Ms. Rogers' Appeal, J. Tyler Ward II, attorney, responded on behalf of the Fiscal Court/Judge-Executive. Mr. Ward argued, in relevant part, that Judge-Executive Ward's denial must be affirmed, "because deciding otherwise would require a public agency to prove a negative - that a record does not exist - without a prima facie showing to the contrary." Mr. Ward asserted that Judge-Executive Ward is "not the Record Custodian for random papers that individual magistrates bring to meetings of the Fiscal Court," which is a "credible explanation" for the lack of responsive documentation; the Fiscal Court further maintained that Magistrate Adams "never presented a document to Court as Ms. Rogers alleged." Having reviewed the DVD recording of the Fiscal Court's May 15 meeting, this office respectfully disagrees with its application of existing legal authority on the facts presented as well as its characterization of the critical fact.
The Kentucky Open Records Act contemplates the appointment by each public agency of an "official custodian of records" at KRS 61.872, 61.876, and 61.880. 07-ORD-001. That term is defined at KRS 61.870(5) as "the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care, and keeping of public records, regardless of whether such records are in his actual personal custody and control[.]" It is the official custodian of records, or someone operating "under his authority," who is responsible for issuing the agency's final response to a request made under the Act. Judge-Executive Ward is himself a public agency pursuant to KRS 61.870(1)(a).4 See 10-ORD-152; 10-ORD-181. He is also the chief administrative officer of the Letcher County Fiscal Court, a public agency pursuant to KRS 61.870(1)(d) .5 Id. Because Ms. Rogers requested access to a specific record that Magistrate Adams did, in fact, reference during the Fiscal Court's May 15 regular meeting, and did not limit her May 16 request to records in the personal custody or possession of the Judge-Executive, this office must treat his response as one that constituted final action on behalf of his office and the Fiscal Court. 10-ORD-181, pp. 2-3.
When, as here, the request is directed to a Fiscal Court as the public agency, rather than a Judge-Executive as the public agency, the Records Custodian/ Judge-Executive is required "to conduct a search for responsive records beyond those in his possession." 10-ORD-152, p. 2 (Floyd County Judge-Executive's response to request was deficient in that he "relied almost entirely on his personal knowledge of responsive records rather than conducting a search that could reasonably be expected to produce" the record in dispute per 95-ORD-96). Judging by his initial and supplemental responses, the Judge-Executive did not conduct any search for the record that Ms. Rogers described, relying instead on the lack of such a record in his possession and the fact that Magistrate Adams did not formally "present" the record in dispute; neither fact is dispositive. Rather, the Fiscal Court's narrow interpretation of the current request was not reasonable. See 13-ORD-029 (a reasonable person would have deemed the letter in dispute at least potentially responsive and the agency's belated argument regarding the semantics of the request was unpersuasive on the facts presented) . Ms. Rogers' request was "adequate for a reasonable person to ascertain its nature and scope . . . ." when viewed in context, and was therefore sufficiently descriptive under
Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008). "[She] was required to do nothing more and, indeed, likely could not have done anything more because [s]he could not reasonably be expected to request blindly, yet with particularity, documents . . . that [she] had never seen. [Footnote omitted.]" Id.
The Fiscal Court was correct in asserting 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 credibly explain the nonexistence of the records if appropriate. See 01-ORD-38; 04-ORD-075; 12-ORD-231; 15-ORD-210. 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."6 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
Cabinet for Health and Family Services v. Todd County Standard, Inc., 488 S.W.3d 1 (Ky. App. 2016); 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 has 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)(or, here, objective proof in the form of a recording that confirms the Magistrate read from a record beginning around 8:45 on the DVD)[.]" 11-ORD-111, pp. 3-4 (emphasis added); 11-ORD-074, pp. 3-5; compare 12-ORD-209. Because the agencies' responses were, at best, "limited and perfunctory,"7 under the circumstances presented in each of those cases, the Attorney General found those responses both substantively, as well as procedurally, deficient. 11-ORD-111, p. 5, quoting 11-ORD-074. This office reaches the same conclusion here.
Judge-Executive Ward's assertion that he does not serve as the Records Custodian for "random papers" that individual magistrates bring to Fiscal Court meetings did not constitute a "credible explanation" for the purported nonexistence of the identical record in the possession or custody of the Fiscal Court (as opposed to nonexistence of such a record in his custody or possession), nor did it excuse him from conducting a reasonable search of county/Fiscal Court records before responding to Ms. Rogers' May 16 request. See 09-ORD-107 (mere possession of records by the public agency from which those records are requested is enough to compel that agency to either make the records available for public inspection or cite a statutory basis for denial, including "personal" folders of individual magistrates, i.e. , "manila folders containing records of county expenditures" that were not "officially" kept records of county business and were "nothing more than duplicates of invoices already made public").
The Fiscal Court "was authorized to require [Ms. Rogers] to inspect any existing record(s) that was potentially responsive to [her] May 16 request prior to providing [her] with a copy whether the request otherwise satisfied the higher standard of specificity found at KRS 61.872(3) or not . . . ; however, the agency was not permitted to deny access to an existing nonexempt record(s) based on a 'narrowing legalistic interpretation' of [the] request." 13-ORD-029, pp. 5-6. Under these circumstances, "the agency satisfies its obligations under the Open Records Act by making the record[s] available for inspection during normal office hours." 99-ORD-63, p. 4. See 08-ORD-047; 11-ORD-127; 12-ORD-049; 12-ORD-082; 12-ORD-169. At a minimum, the Fiscal Court should identify the nature of the record, which appeared to contain information derived from a local agency, in a written response and either provide Ms. Rogers with a copy upon receipt of payment or cite a statutory basis for denying access.
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.
Footnotes
Footnotes
1 See 16-ORD-259 for the relevant analysis regarding computation of time per KRS 61.880(1) and 446.030 and the related issue of timely access.
2 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 03-ORD-087.
3 To avoid further miscommunications between the parties, the Attorney General notes that Ms. Rogers can be required to conduct onsite inspection of documents prior to receiving copies per KRS 61.872(3)(b), given that she resides in the county where the records are located. However, insofar as the Judge-Executive asked Ms. Rogers to contact his Executive Secretary, Hettie Adams, "to schedule a time to inspect the above records on Tuesday, May 30th, between the hours of 10:00 am and 2:00 pm," this office reminds the Fiscal Court that KRS 61.872(3) mandates the availability of public records "during the regular office hours of the public agency." This office has recognized that "any attempt by a public agency to limit the period of time in which a requester may inspect public records places 'an unreasonable and illegal restriction' upon the requester's right of access." 02-ORD-094, p. 4 (citation omitted); 10-ORD-199.
The only recognized exception is when a public agency "has a very small complement of employees or restricted and irregular office hours," neither of which has been established here. Id. Under those circumstances, the Open Records Act contemplates that the public agency and the requester will agree upon a mutually convenient time and place for the requester to inspect public records. Id., pp. 4-5 (citation omitted). "In the interest of absolute clarity," this office reiterates that Ms. Rogers (or any requester) "cannot be required to make an appointment to inspect the records, inasmuch as such a requirement could be interpreted as an illegal restriction on access, but may make such an appointment as a reasonable accommodation to the [Fiscal Court]." Id., p. 5.
4 KRS 61.870(1)(a) defines "public agency" as "[e]very state or local government officer."
5 KRS 61.870(1)(d) defines "public agency" as "[e]very county and city governing body . . . ."
6 Compare Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005) recognizing that a requester is not entitled to a hearing on his claim that certain records actually exist, in the absence of "a prima facie showing that such records do exist."
7 Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996).