Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Owensboro violated the Kentucky Open Records Act in denying Bryan K. Smeathers' June 28, 2017, "Open Records Request." In that request, directed to the "Custodian of Public Records," Mr. Smeathers quoted the December 14, 2016, article (copy attached to request) by Steve Vied, which appeared in the Owensboro Messenger-Inquirer , and in relevant part stated, "The naming of the Riverwalk in Payne's honor was agreed to by the other four members of the Owensboro City Commission and caught the outgoing Mayor by surprise." Mr. Smeathers correctly observed that Mr. Vied's December 14, 2016, article indicates, "the four commissioners in fact held and conducted an illegal meeting and did in fact conduct business and expend public funds for the making and posting of the signs also mentioned in the article on TV news reports which are available from the local TV departments." Noting that two of those commissioners are currently on the City Commission, Mr. Smeathers asked for "1) Notice calling for the special meeting [;] 2) Minutes of the meeting[;] 3) Receipts for the signage installed on the Riverwalk[;] and 4) Actual labor records and costs for the installation of the signage on Riverwalk."
By letter dated July 6, 2017, Assistant City Attorney Stephen D. Lynn responded on behalf of the City. With regard to items 1 and 2 of Mr. Smeather's request, Mr. Lynn advised, without further elaboration, that "[t]he City has no records responsive to this request." The City attached two invoices responsive to item 3 of the request in addition to an e-mail dated July 5, 2017, "explaining the cost (number of hours multiplied by hourly rate of labor) of installation of the plaque for Ron Payne on the Riverwalk." 1 Accordingly, issues relating to items 3 and 4 of the request appear to have been rendered moot per 40 KAR 1:030 Section 6 and our analysis focuses on the City's denial of items 1 and 2. 2
Mr. Smeather's August 17, 2017, appeal is entitled, "Request for AG Opinion - Open Meetings Violation(s), City of Owensboro, KY." In closing his letter of appeal, Mr. Smeathers asked the Attorney General to provide an "opinion as to violations of the Kentucky Open Meetings and Open Records Statutes." Insofar as Mr. Smeathers attempted to allege that violations of the Open Meetings Act , rather than the Open Records Act , were committed, "this office is precluded from rendering a decision under the Open Meetings Act where the appeal has not been perfected consistent with the mandatory language of KRS 61.846(1) and (2)." 08-OMD-110, p. 2; 01-OMD-156; 06-OMD-079. See, 40 KAR 1:030 Section 1 ("The Attorney General shall not consider a complaint that fails to conform to KRS 61.846(2) requiring the submission of a written complaint to the public agency and the public agency's written response" ). Because Mr. Smeathers did not first submit a written complaint to the presiding officer of the City per KRS 61.846(1), stating "the circumstances which constitute an alleged violation" and stating "what the public agency should do to remedy the alleged violation," and thus could not comply with KRS 61.846(2) as required to perfect an Open Meetings Appeal, this office must decline to render a decision under the Open Meetings Act. 3 08-OMD-110, p. 1; 07-ORD-201; 16-OMD-260. The City was correct in asserting on appeal that "[t]he process under KRS 61.846 should be fully complied with before Mr. Smeathers asks for [a decision]" stating that a violation of the Open Meetings Act was committed. See 14-ORD-055, p. 4, n. 4.
Notwithstanding his improper characterization of this matter, the fact remains that Mr. Smeathers provided the necessary documentation to perfect his Open Records Appeal. KRS 61.880(2)(a) outlines the procedural requirements for submitting an Open Records Appeal. In relevant part, KRS 61.880(2)(a) provides:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. . . .
In sum, the written request and the agency's written response, if any, comprise the record upon which the Attorney General relies in reviewing the actions of a public agency. See 40 KAR 1:030, Section 1; 94-ORD-28. By providing this office with a copy of his June 28, 2017, written request, and the City's July 6, 2017, written response, Mr. Smeathers complied with KRS 61.880(2)(a).
Mr. Lynn equivocally asserted on appeal that Mr. Smeathers' "complaint is based solely upon a newspaper article and insinuates that there was an illegal meeting, which may not necessarily be the case." 4 It was unclear from this assertion whether the City is denying that a meeting occurred within the meaning of KRS 61.805(1), or is arguing that any "meeting" which did occur was legally held. 5 With regard to Mr. Smeather's allegation that the City violated the Open Records Act, which is properly before us, Mr. Lynn generally relied upon prior "opinions" by the Attorney General holding that a "governmental agency," i.e. , "public agency" within the meaning of KRS 61.870(1), "is not required to provide records that it does not possess." Having reiterated the City's original response that no special meeting notice or minutes exist, 6 Mr. Lynn asserted "there has been no violation of the [Open Records Act] , unless you consider it a violation to not provide minutes to a meeting that was never conducted." 7 Although the City's position is correct as far as it goes, additional discussion is warranted on the facts presented.
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 explain the nonexistence of the requested records if appropriate. See 01-ORD-38; 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." 8 11-ORD-074, p. 2 (agency failed to rebut the presumption); 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; 12-ORD-221.
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. Because the agencies' responses were, at best, "limited and perfunctory," 9 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 regarding the City's initial response, which neither confirmed nor denied whether the alleged "meeting" was held. 10 If not, a special meeting notice and minutes were not required or created whereas KRS 61.835 mandated the recording and maintaining of minutes, and KRS 61.823(3) and (4) mandated the posting of a special meeting notice, if the alleged meeting was, in fact, held, as the record suggests. While this office makes no finding as to whether the City discharged its duties under these provisions in the context of this appeal, its failure to explain the records' nonexistence in light of these statutory mandates rendered its original response deficient on these facts. See 12-ORD-192. Given the City's affirmative statement on appeal that "a meeting . . . was never conducted," and the lack of related information, the City cannot otherwise be said to have violated the provisions of the Open Records Act in denying a request for nonexistent records.
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 This office has consistently recognized that "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are generally not capable of resolution under the Act." 05-ORD-236, p. 3 (reporter questioned the validity of invoices produced in response to request and the Attorney General advised that the relief sought was unavailable under the Act); 05-ORD-008. However, the financial and operational records of a public agency are open for public inspection. 05-ORD-065, p. 9; OAG 76-648 (holding that "wherever public funds go, public interest follows"); OAG 82-169 (holding that "the contracts, vouchers, and other business records of a public agency are open to public inspection under the Kentucky Open Records Law"); OAG 91-7 (holding that "records of bills paid, payroll check stubs or cancelled checks, and all other records which show funds received and disbursed are public records"); 10-ORD-140.
The record on appeal contains no information regarding the lack of substantiating documentation provided; equally lacking is any explanation of the steps taken by the City to identify and locate all existing documents responsive to item 4 of Mr. Smeathers' request. See 95-ORD-96 (requiring a public agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested"). If the City possesses additional documentation that is responsive to item 4, as the record suggests, it must "retrieve the records from which the information was extracted, calculate its actual costs at a rate of ten cents per page for copies, plus postage [unless Mr. Smeathers first conducts onsite inspection per KRS 61.872(3)(b)], notify Mr. [Smeathers] of the costs, and mail copies of those records to him upon receipt of this amount." Id. 10-ORD-219, p. 5.
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."
3 Issuance of advisory opinions is governed by KRS 15.020 and 15.025. An opinion "is highly persuasive, but not binding on the recipient." York v. Commonwealth, 815 S.W.2d 415, 417 (Ky. App. 1991)(citation omitted). Open Records Decisions have the "force and effect of law" under KRS 61.880(5)(a) if not appealed to circuit court (KRS 61.846(4)(b) for Open Meetings Decisions). Given our adjudicatory role in resolving disputes arising under KRS 61.880(2) and 61.846(2), the same considerations that prevent courts from rendering advisory opinions also generally prevent this office from doing so. See 07-ORD-110; 14-ORD-040.
4 In Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 459, 474 (Ky. 1998), the Kentucky Supreme Court defined the term "public business" as "the discussion of the various alternatives to a given issue about which the [agency] has the option to take action." The City has not challenged the accuracy of the article's content or disputed that a quorum was present when the discussion of whether to name the Riverwalk for the City's former mayor occurred.
5 Mr. Smeathers submitted a written complaint per KRS 61.846(1) on August 28, 2017, the date of the City's response to his appeal.
6 Pursuant to KRS 61.835, minutes of "action taken" at every meeting (as defined at KRS 61.805(1)) of any public agency (as defined at KRS 61.805(2)), "setting forth an accurate record of votes and actions taken at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body." In addressing the requirements of KRS 61.835, the Attorney General determined that minutes must be maintained, even if those minutes reflect only that the public agency convened, approved the minutes of the last meeting, and adjourned. See 00-OMD-96; 95-OMD-64. Such minutes are subject to public inspection. Id.; 14-ORD-055. Thus, KRS 61.835 has implications relative to both the Open Records Act and the Open Meetings Act. See 06-ORD-145 (failure to produce minutes of Admissions Committee meetings in response to request constituted a violation of KRS 61.835 as well as the Open Records Act); 04-OMD-182; 14-OMD-207.
7 The fundamental mandate of the Open Meetings Act, codified at KRS 61.810(1), provides that "[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times[.]" Violation of the Open Meetings Act can thus result from a private meeting of a quorum of the members of a public agency at which either public business is discussed or action is taken. 15-OMD-033, pp. 4-5.
8 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."
9 Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996).
10 The term "meeting" is broadly defined at KRS 61.805(1) as "all gatherings of every kind . . . regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting."