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 Gallatin County Joint Planning Commission ("Commission") violated the Open Records Act in the disposition of Michael Murphy's February 28, 2018, request to inspect "public records retained by the Gallatin County Planning & Zoning Secretary, " namely, the "Certification Form for training . . . as required by KRS 147A.027 and its provisions" for three named individuals he identified as members of the "Glencoe Board of Adjustment" (Items 1-3). Mr. Murphy also requested the "Letter of resignation from Mr. Winslow Baker, Zoning Administrator." 1 In a timely written response, Gallatin County Judge/Executive Ken McFarland responded to Mr. Murphy's request. Mr. McFarland advised, "Items 1-3 will be addressed at the upcoming Planning and Zoning Commission meeting on 3/6/18 @ 7:00 p.m. at the UK Extension Office 395 US 42 West Warsaw, KY." The Judge/Executive explained that Mr. Baker "gave notice of his resignation/ retirement by way of a phone call to Judge McFarland, there was not a written resignation. " 2
In his March 3, 2018, appeal, Mr. Murphy cited KRS 147A.027(1)(c) and (2)(c) in support of his position that "the secretary of the planning commission" should possess the documents responsive to Items 1-3 of his request. 3 Upon receiving notification of Mr. Murphy's appeal from this office, the Judge/ Executive supplemented his original response as follows:
The three board members in question were appointed by the City of Glencoe and were notified of the required training. The [Commission] had no knowledge of the appointments or training that may or may not have happened. The purpose or intent as listed on our [Commission] Agenda was to try to determine the status of these Board of Adjustment members. This is strictly a City of Glencoe Board of Adjustments. We are currently working with the City of Glencoe to help rectify any issues with their Board. Some of the city leaders were present at the meeting and can probably answer Mr. Murphy's concerns.
The Judge/Executive also reiterated that Mr. Baker "did not turn in a written resignation to my office."
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 justifying its denial per KRS 61.880(2)(c), however, a public agency must offer some explanation for the nonexistence of the records in dispute at a minimum. See 01-ORD-38; 04-ORD-075; 12-ORD-231. 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." 4 11-ORD-074, p. 2; 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.
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 (review of applicable statutes confirmed that agency should have possessed certain records and the agency had "not even attempted to overcome the presumption by explaining why the 'hoped-for record[s' do] not exist"); 11-ORD-074, pp. 3-5; 15-ORD-210. Compare 12-ORD-209. Because the agencies' responses were, at best, "limited and perfunctory," 5 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). The Office of the Attorney General reaches the same conclusion here.
As in 11-ORD-111, the public agency in this case has not asserted that any or all records which may be responsive to Mr. Murphy's request, namely the "written statement[s]" certifying that each individual has completed the statutorily required training (presumed to exist in the possession of "the secretary of his or her planning commission" ), "are in the custody of a different public agency or were destroyed in the normal course of business in accordance with applicable records retention schedules, . . . or even asserted that such records were created and then lost." Instead, the Commission initially advised that issues regarding those records would be addressed in the agency's next regular meeting, without identifying the steps taken to identify and locate any such documents, and ultimately asserted only that the City of Glencoe appointed the members and they were notified of the required training. 11-ORD-111, pp. 6-7. See 12-ORD-192 (omission by the agency of explanation for nonexistence of appraisal statutorily presumed to exist constituted a substantive violation of the Act); 15-ORD-210. Compare 12-ORD-162 (Oldham County Planning and Development Services initially violated KRS 61.880(1) in failing to affirmatively indicate that written statements required under KRS 147A.027 did not exist, but ultimately explained the reason that no such records were created , and whether the agency was properly interpreting or fully complying with KRS 147A.027 was not an issue that was justiciable in this forum). "Under the rule announced in Eplion , [the Commission] must provide Mr. [Murphy] with a written explanation for the nonexistence of records responsive to his [current] request [after conducting a reasonable search per 95-ORD-96 if the agency has not already done so ]. Until it has done so, its duties under the Open Records Act will not be fully discharged." 12-ORD-195, p. 5; 15-ORD-016. Compare 16-ORD-134.
Either party may appeal this decision by initiating action in the appropriate circuit court under 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 Mr. Murphy submitted his request to the "Planning & Zoning Administrator [i.e., Secretary]." The Gallatin County Judge/Executive responded to his request. According to information this office independently located on http://gallatinfiscalcourt.com/planning-and-zoning/, the Gallatin County Fiscal Court website, the "Gallatin County Joint Planning Commission" includes "Warsaw, Glencoe and the unincorporated areas of the county[.] Sparta has no zoning ordinance." In addition, "Warsaw, Glencoe and Gallatin County each have their own Board of Adjustments." Given the absence of clarification present in the record on appeal, this office must assume, based upon the foregoing, that the "Gallatin County Joint Planning Commission" is the agency whose actions Mr. Murphy has challenged.
2 Mr. Murphy did not challenge this aspect of the Commission's denial nor does the record on appeal contain any objective proof to refute the Judge/Executive's assertion that no written resignation exists. No legal authority has been cited that requires a resignation to be submitted in writing. As explained in greater detail below at p. 3, the Commission cannot provide a nonexistent record for inspection or copying. The Commission explained the reason that no such resignation exists, namely that Mr. Baker provided his resignation verbally, and has discharged its duty in this respect.
3 In relevant part, KRS 147A.027, Orientation and continuing education training for planning and zoning officials and staff, provides:
(1)(a) Each planning commissioner and board of adjustment member of a planning unit shall, within one (1) year prior to appointment, or within one hundred twenty (120) days of appointment, attend a minimum of four (4) hours of orientation training in one (1) or more of the subjects listed in subsection (4) of this section.
. . .
(c) Each of the individuals listed in paragraphs (a) and (b) of this subsection shall certify his or her attendance by a written statement filed with the secretary of his or her respective planning commission within one hundred forty (140) days of appointment or employment. Each statement shall identify the date of each program attended, its subject matter, location, sponsors, and the time spent in each program .
(2)(a) Each planning commissioner and board of adjustment member of a planning unit shall, within each period of two (2) consecutive calendar years, starting at the date of the individual's appointment, attend no less than eight (8) hours of continuing education in any of the subjects listed in subsection (4) of this section.
. . .
(c) Each of the individuals listed in paragraphs (a) and (b) of this subsection shall certify his or her attendance by a written statement filed with the secretary of his or her respective planning commission by December 31 of each calendar year. Each statement shall identify the date of each program attended, its subject matter, location, sponsors, and the time spent in each program .
(Emphasis added.)
4 Compare Bowling v. Lexington-Fayette Urban Cnty Gov't, 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."
5 Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996).