Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the City of Ravenna ("City") violated the Open Records Act in its disposition of Mr. William Van Cleve's open records request for records relating to an entry on the City's December 2016 financial report. For the reasons stated below, we find that the City did not violate the Act.
Background of Earlier Open Records Decision, 17-ORD-077
In order to more fully understand the issue in the current appeal, we include a brief summary from our earlier decision, 17-ORD-077:
On March 20, 2017, Mr. William Van Cleve, made an open records request to the Ravenna City Clerk:
I would like a copy of the petty cash account from July 1, 2016 through February 28, 2017 for the amounts of money added to the petty cash account and from what account the money was taken from [ sic ] and added to the account. Also, I would like a copy of all expenditures from the petty cash account and what the expenditures were for the same time period.
The City responded that it did not have the requested record, and Mr. Van Cleve appealed to this office, arguing that the record should exist because the City's financial report for December 2016 showed "an entry of $ 300.00 being transferred from petty cash to receipts as income for the general fund."
The City provided an affidavit from Beverly Brewer, Mayor, in which she explained that the entry of "Petty Cash" under receipts on the 2016 City of Ravenna Financial Report was a one-time data entry error. The Mayor further explained that $ 300 should have been entered as a "Property Tax" receipt and that the money was eventually deposited into the correct account. On April 26, 2017, this Office issued 17-ORD-077 which determined that the City did not violate the Open Records Act because the City could not provide a record to Mr. Van Cleve that did not exist and had affirmatively stated to Mr. Van Cleve that the record did not exist, and explained why the record did not exist.
Current Open Records Appeal .
On October 3, 2017, Mr. Van Cleve made another open records request to the City:
This is an open records request to inspect and/or obtain copies of any record or records documenting the receipt of $ 300 and entered as "Petty Cash" on the December 2016 City of Ravenna Financial Report, any record or records identifying that $ 300 payment as payment for a property tax bill, and any transactional record or records reallocating the $ 300 to the "Property Tax" fund.
The City responded by letter of October 4, 2017, stating: "Everything you asked for in your open records request concerning the $ 300 entered as petty cash was already given to you in April of 2017, we have no further information to provide."
By letter of October 7, 2017, Mr. Van Cleve appealed the City's response. Mr. Brooks Stumbo, attorney, responded to the appeal on behalf of the City by letter of October 19, 2017. The City stated that:
With regard to the current appeal, there are not any further records regarding the petty cash account, which is not an "operational" account and seldom, if ever, used by the City. Mr. Van Cleve's request for records relating to that account are, therefore, unable to be fulfilled. Again, the account did not actually hold $ 300, as it was a data entry error, and no money actually moved from one account to another to generate a record of the transaction. To the extent Mr. Van Cleve's request can be interpreted as requesting records relating to all property tax receipts, I have asked the City to provide me all such receipts from November 2016 through February 2017 (which appears to be generally the period inquired into by Mr. Van Cleve), and will release that information when received.
The City cannot produce nonexistent records for inspection or copying; nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist. See Bowling v. Lexington-Fayette Urban County Gov't, 172 S.W.3d 333, 341 (Ky. 2005) ("before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist"); 07-ORD-188; 14-ORD-145; compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (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"); 12-ORD-195. The right to inspect records only attaches 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; 04-ORD-205; 07-ORD-190. A public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record [s] exist[]," but discharges its duty under the Open Records Act in affirmatively indicating that no such records exist and explaining why if appropriate. On many occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 99-ORD-98; 09-ORD-029; 11-ORD-069. Under the circumstances presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2. Rather, KRS 61.880(2)(a) narrowly limits our scope of review to the request and denial, and any additional documentation requested by this Office from the agency.
However, in order to ensure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective," Bowling , above, at 341, this office has recognized that "the existence of a statute, regulation, or case law directing the creation of the requested record" creates a rebuttable presumption of the record's existence at the administrative level, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4; 12-ORD-038. No such authority has been cited here. See 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring agency to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); 11-ORD-118. Appellant has referenced the "Local Government General Records Retention Schedule," 1 Series L5000, Accounts Receivable, 2 apparently for the purpose of showing that there is a requirement to maintain records dealing with tax receipts. However, that retention schedule does not require the creation of records, it merely sets forth the retention period and disposition for records that fit within its description. See footnote 1.
Here, the City has disputed that there was ever a record in existence responsive to the records request. Although Appellant argues that such a record should exist, there is insufficient basis in the record on which to dispute the agency's representation that no such records exist. 09-ORD-214, pp. 3-4; see 07-ORD-033. In the absence of the requisite prima facie showing that a record should exist, or evidence to suggest that the City ever had occasion to possess the requested record, the agency's disposition of Appellant's request is affirmed.
Appellant requests that this Office refer this appeal to the Department for Library and Archives. Although there are occasions when, under the mandate of KRS 61.8715, we refer a records management issue to the Department for Libraries and Archives for further inquiry, we do not believe that this appeal warrants such a referral. There is no indication, on this record of appeal, that the City has a records management issue that the Department for Libraries and Archives should address.
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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