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 Worthington Hills violated the Open Records Act by failing to provide records within three days of receiving an open records request. For the reasons stated below, we find no substantive violation of the Act by the City.
On October 20, 2017, Robert Stonum, a commissioner of the City of Worthington Hills ( the "City"), emailed 1 Betty Coleman, City Clerk, at her official email address as City Clerk, and requested the following records:
1. PDF copies of all documentation submitted to Heartland Payment Systems and the City Treasurer, Roy Coleman, for the September Payroll for the City of Worthington Hills.
2. PDF copy of the JCLC Invoice # 2017-027 -- Paid 9/6/ 2017 Ck # 885011
3. PDF copy of the Double S Printing Invoice # 21498 -- Paid 9/11/ 2017 Ck # 885018
4. PDF copy of the Cut-N-It Lawn care services LLC Invoice # 6760 Paid 9/20/ 2017 Ck 885018
5. PDF copy of the Ritchie Realities Invoice (number unknown) -- Paid 9/26/ 2017 Ck # 885022
6. PDF copy of the Cincinnati Insurance Co. Invoice (number unknown) -- Paid 9/27/ 2017 Ck # 885023
7. PDF copies of all original receipts for the usage of the Debit Card associated with the City's Bank Account ending in # 5303, for the period of September 1, 2017 through September 30, 2017.
On October 24, 2017, the City Clerk responded to Appellant, stating that she had requested the information and that the "information will be forwarded to you as soon as I receive it, hopefully this week." Appellant appealed the City's response to this Office by letter dated October 25, 2017.
The City's response of October 24 failed to include, as required by KRS 61.880(1) 2, a detailed explanation of the cause for the delay in producing the requested records, and to state the earliest date by which the records would be produced. In applying KRS 61.880(1), the Attorney General has consistently recognized that the Open Records Act contemplates production of the requested records on the third business day after receipt of the request, and not simply notification that the agency will comply. On this issue, 04-ORD-253 is controlling. Although the City may very well have been justified in delaying production of the records, its failure to explain in detail the reason for the delay, and to provide the earliest date that the records would be produced, constitutes a procedural violation of the Open Records Act.
The City responded to the appeal by faxed letter on November 2, 2017, and explained that the records for all but Request No. 1 had been provided as of November 1, 2017. 3 In regards to Request No. 1, the City stated: "No documentation submitted to Heartland Payroll Systems or City Treasurer Coleman, for the September 2017 Payroll for the City of Worthington Hills. Revised Total Salary Expense attached." The City further explained that "One item was not sent because the clerk and treasurer's office did not and do not have any of the requested information. Regardless of the request[,] information cannot be produced when it's not available." After receiving the City's response and records, Appellant complained that the City should have had the records responsive to Request No. 1 and he referenced retention schedules for "payroll documentation, " and "vendor invoices and debit card receipts." 4
The City fulfilled its obligations under the Open Records Act by providing the records that were responsive to Requests 2 through 7, and notifying Appellant that there were no records responsive to Request No. 1. "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-ORD-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). The record on appeal does not cite any legal authority requiring the creation of the requested records or provide an explanation of why records responsive to Request No. 1 should exist. In the absence of legal authority requiring the creation of the records, or facts indicating the records were created 5, we see no need to require further explanation of the requested documents' nonexistence. See 11-ORD-091.
The retention schedule series cited by Appellant do not require the creation of records, they merely state the requirements for retaining certain records once the records are in an agency's custody 6. Lacking any argument or legal authority as to why the records should be in the custody of the City, we are unable to find a substantive violation for the City's inability to produce records responsive to Request No. 1. By providing all responsive records in its custody to Appellant, and affirmatively stating that it had no records responsive to Request No. 1, the City complied with the Act. Accordingly, we find no substantive 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Procedurally, requests by e-mail need not be honored under the Open Records Act. See 09-ORD-190 (citing 09-ORD-116). By its responses, however, the City has waived the delivery requirement of KRS 61.872(2) that requires delivery of open records requests by mail, fax, or hand delivery. We therefore review the substantive merits of the City's disposition of the requests.
2 KRS 61.880(1), in relevant part, states: "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."
3 Pursuant to 40 KAR 1:030, Section 6, "[i]f 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; 04-ORD-046. As the City provided records to all requests except Request No. 1, Appellant's appeal is moot as to Items 2 through 7 under 40 KAR 1:030, Section 6, and we decline to address those requests further.
4 Appellant referenced the General Records Retention Schedule for Local Governments, and specifically Series L-5023, Individual Payroll Authority File, and Series L-5011, Accounts Payable File.
5 Regarding factual disputes of this nature between a requester and a public agency, the Attorney General has long recognized:
This office cannot, with the information currently available, adjudicate a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that ? copies of some records have been provided. Hopefully, any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
02-ORD-31, p. 4, citing OAG 89-81.
6 This retention schedule may be used by all local governments and their agencies and offices. It lists those records that any local agency may create or receive in the course of daily business." Local Government General Records Retention Schedule: https://kdla.ky.gov/records/recretentionschedules/Documents/Local%20Rec…