Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the City of Owenton violated the Open Records Act in its disposition of Gerald Kemper's request for records relating to collection of water bill services by the City. For the reasons stated below, we find that the City of Owenton did not violate the Act.
By letter dated September 21, 2017, Gerald Kemper, Esq., requested the following from the City of Owenton:
A copy of all documents originating from any agreements between the City and the Ky. American Water Company relating to the collection of water bills services by the City for the Company.
Mr. Kemper filed his open records appeal with this Office by letter dated September 29, 2017, stating that he had received no response to this request from the City.
Laura Aldridge, City Clerk, City of Owenton, responded to the appeal by letter of October 4, 2017. She explained that the City had received the open records request from Appellant on September 25, 2017, and had responded to the request by typing the following on the bottom of the letter of request and mailing it back to Appellant:
In response to this request, there are no existing documents to date. We expect a contract/agreement to be forthcoming.
Laura R. Aldridge
City Clerk
City of Owenton
9/27/2017
The City sent this response 1 via certified mail, and provided a "Product & Tracking Information" sheet to this Office which showed that the response was mailed to Appellant via United States Postal Service on September 27, 2017.
The City fulfilled its obligations under the Open Records Act by determining that no responsive records existed and then notifying Appellant that there were no responsive records. "Obviously, a public agency cannot afford a requester access to records which do not exist." 99-ORD-98. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 99-0RD-150. Moreover, an agency is not required to "prove a negative" when explaining that it does not have a record or that it does not exist. 09-ORD-194; compare, 16-ORD-101 (existence of a statute directing the creation of the requested record creates a presumption of the record's existence). In the absence of legal authority requiring the creation of the records, or facts indicating the records were created, we see no need to require further explanation of the requested documents' nonexistence. See 11-ORD-091. Accordingly, we find no violation of the Open Records Act.
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.
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