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 Office of the Governor ("Governor's Office") violated the Open Records Act in partially denying the February 5, 2018, request of Wanda Lynch, President of The League of Women Voters of Kentucky ("LWVK"), for "an opportunity to inspect or obtain copies of public records" containing the following:
1. the number of applications for restoration of voting rights that have been received since Governor Bevin took office;
2. the number of applications for restoration that have been approved;
3. where rights have not been approved, the reason(s) why they were not.
By letter dated February 14, 2018, Ms. Lynch initiated this appeal because, as of that date, she had not received a written response from the Governor's Office. Upon receiving notification of Ms. Lynch's appeal from this office, Deputy General Counsel Matthew F. Kuhn responded on behalf of the Governor's Office by letter dated February 20, 2018, advising, "[T]he Governor's Office timely responded on February 8, 2018, with all responsive records in its possession."
Mr. Kuhn enclosed a copy of his February 8, 2018, initial response to his February 20, 2018, appeal response. "For your first and third requests," Mr. Kuhn advised, "the Governor's Office has no responsive records. For your second request, the Governor's Office has located the enclosed responsive records." On appeal, Mr. Kuhn stated that he called Ms. Lynch upon receiving the notification of her appeal to ask for clarification; she asked Mr. Kuhn to "resend the Governor's Office's response to a different address," which Mr. Kuhn did. Although Mr. Kuhn asked Ms. Lynch to call him upon receipt of the response, including attachments, Mr. Kuhn indicated he had not received a call as of February 20, 2018.
Upon receipt of the appeal response from the Governor's Office, including the February 8, 2018, response, this office contacted Ms. Lynch to confirm that she had also received it and to afford her the opportunity to address the position of the Governor's Office. Ms. Lynch confirmed receipt of Mr. Lynch's February 15, 2018, letter as well as the February 8, 2018, response attached thereto, but advised that LWVK had still not received the original February 8, 2018, response from the Governor's Office. Ms. Lynch also questioned how the 21 pages of documents attached to Mr. Kuhn's response could be deemed responsive given that none of the pages contain any "headings, consistent numbering, or explanations of the meanings of those pages, although the accompanying memo indicates this is a response to our request for the number of applications approved during Governor Bevin's tenure. There is no identification to guide us as we examine these pages." Ms. Lynch also questioned the accuracy of the response and compared it to a response by the Kentucky Department of Corrections ("DOC") to a separate request that is not a part of this appeal. 1
Before addressing the substantive question presented, this office will briefly address the alleged procedural irregularity, i.e. , the Office of the Governor's purported failure to issue a written response within three working days after it received Ms. Lynch's February 5, 2018, request per KRS 61.880(1). This office has consistently acknowledged the inability to resolve factual disputes concerning actual delivery and receipt of a request or a response by the agency to which a request was directed. See OAG 89-81; 03-ORD-172; 04-ORD-223; 08-ORD-066; 12-ORD-122. This office is not statutorily authorized to conduct investigations, gather evidence, interview witnesses, etc., in the context of resolving an Open Records Appeal. See 12-ORD-165.
The record on appeal does not contain sufficient evidence concerning the actual delivery and receipt of the agency's initial response for this office to resolve the related factual issue presented. This office has no reason to question Ms. Lynch's veracity; however, the record is equally lacking in terms of any basis to question the veracity of the Governor's Office or conclusively refute the affidavit ultimately provided. 2 Given this conflicting evidence as to when the agency's response was actually sent and received, the office is unable to reach a conclusive resolution of the related procedural issue and has no basis to find that a violation was committed.
In the interest of both fairness and efficiency, this office afforded Mr. Kuhn the opportunity to address the claims that Ms. Lynch made in her supplemental correspondence regarding the perceived omissions and discrepancies, lack of additional responsive documents, etc. Mr. Kuhn stated that a public agency is not required to answer questions regarding the content of records or to revise the records for the requester to better understand the information contained therein. Addressing Ms. Lynch's concern regarding the lack of context for the content of the records provided, Mr. Kuhn stated that said records identify "the number of applications for restoration that have been approved" -- "what Ms. Lynch requested -- by listing all individuals who have had their voting rights restored by executive order since Governor Bevin took office (788 persons, according to Ms. Lynch's count)." Mr. Kuhn asserted that Ms. Lynch's account of a response by a different public agency should be addressed with that public agency.
Next, Mr. Kuhn responded to Ms. Lynch's concern regarding the lack of additional responsive documents. Citing 17-ORD-272, 3 he asserted that his initial response informing Ms. Lynch that the Governor's Office "does not possess responsive records for" items 1 and 3 of her February 5 request, was sufficient under the Open Records Act. Mr. Kuhn argued that Ms. Lynch had not cited any legal authority mandating the creation or maintenance of such records by the Governor's Office nor had she provided facts establishing that responsive records exist. He contended that, if enforceable, KRS 196.045 applied to records concerning applications for restoration of voting rights made to DOC, and that the Governor's Office does not have the ability or the obligation to track the number of applications made to DOC. 4 Mr. Kuhn further stated that KRS 196.045 does not require DOC to forward all such applications to the Governor's Office and that DOC only forwards applications of "eligible felony offenders" pursuant to KRS 196.045(1)(e). Mr. Kuhn further asserted that the Open Records Act does not require a public agency to honor a request for information or to respond to requests for the agency to perform research.
A public agency is not required to honor a request for information or to create a record in response to an open records request. 95-ORD-131; 12-ORD-026; 18-ORD-023; KRS 61.871; KRS 61.872(1)-(2). "[T]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; 04-ORD-144; 10-ORD-156. Accordingly, this office has consistently recognized that the "public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information." 04-ORD-080, p. 13 (citing OAG 87-84).
A public agency is only required or able to make any non-exempt records that may contain the information available for inspection or copying if such records were created and currently exist in the possession or control of the agency. 10-ORD-156, p. 3; 16-ORD-149. The Governor's Office asserted on appeal that it provided Ms. Lynch with all existing documents responsive to item 2 and ultimately explained the reason that no additional documents exist within its possession. A public agency 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 Cnty. 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; 12-ORD-087; 14-ORD-145. The Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). To satisfy its burden of proof under KRS 61.880(2)(c), however, a public agency must explain why it cannot produce the records being sought and under what authority the records were destroyed if appropriate. 11-ORD-104, p. 5. See 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. In order to ensure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective," Bowling, 172 S.W.3d 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-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 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 existence of same could be presumed); 12-ORD-037; compare 12-ORD-195.
When, as in this case, a public agency denies that additional documents exist, and the record on appeal supports that contention, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9. Compare 11-ORD-111 (holding that where "the existence of the records in dispute is postulated on existing legal authority or facts in evidence rather than speculation," 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)"), 15-ORD-210. A public agency violates KRS 61.880(1) "if it fails to advise the requesting party whether the" records exist, but discharges its duty under the Act in advising that records being sought do not exist following a reasonable search, and explaining why, if appropriate. 5 98-ORD-154, p. 2 (citation omitted); 14-ORD-204; 16-ORD-172. In the absence of a prima facie showing or evidence to suggest that additional responsive documents were created or maintained, this office affirms the ultimate disposition of Ms. Lynch's request. See 15-ORD-028 (Department of Revenue initially failed to provide any explanation for nonexistence of additional documents but cured this deficiency on appeal); 12-ORD-183; 14-ORD-251.
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 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.
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