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 City of Burgin violated the Open Records Act in the disposition of Burgin City Council Member Katrina Sexton's March 5, 2018, request for copies of ten (10) categories of financial and operational records, including but not limited to: " all bank account transactions" from July 1, 2016, through March 5, 2018; documentation "of all transactions not included on the vendors list and the profits/loss statements," including monthly expenditure reports, etc. dating back to July 1, 2016; documentation relating to a specific property damage claim, including work orders and incident reports from the contractor; documentation authorizing the remodeling and renovation of city hall, the fire department, and the police department since July 1, 2017, including estimates, documentation of all payments made, and minutes of council meetings authorizing the payments; records documenting the "water contractor's list of employees," etc. and copies of "all work orders, invoices, and payments made to and from the water contractor to/from" the City since July 1, 2014; an itemized list of all fire department inventory; an itemized list of all police department inventory; and records documenting "all agreements, contracts, and payments pertaining to the internet, cable, and phone service providers." Ms. Sexton also posed several questions in relation to some of the items that she requested; she acknowledged that her March 5 request implicated a large number of records and that compliance would "require documentation or work by other departments[.]"
By letter dated March 9, 2018, City Clerk Michelle Russell advised Ms. Sexton that she was entitled to inspect and copy all existing items that she requested. Ms. Russell further indicated that regular business hours were Monday through Friday from 8:00 a.m. to 4:00 p.m. With regard to nonexistent items, Ms. Russell explained the reason why the City had not created such records when appropriate. Ms. Russell also explained in some cases that documents responsive to different items of the request contained the information requested insofar as the information currently existed in any format. In addressing the questions that Ms. Sexton initially posed relative to certain items, the City advised that a public agency is not required to honor a request for information as opposed to a request for public records.
By letter dated May 8, 2018, Ms. Sexton initiated this appeal challenging the City's disposition of her March 5 request. Ms. Sexton acknowledged that some items of the request "may be construed as seeking 'information' by asking questions rather than requesting specific documents," but contended that much of the request "did specify detailed documents which were not provided in part" or in their entirety. She emphasized that, "although the request exhaustive in the amount of documents requested, " the primary concern is that she has not received the documents necessary to fulfill her duties and some of those documents "must be retained and/or completed by a municipality. n1" In her view, the City's respose that she may inspect and copy all existing documents responsive to her March 5 request "rather than actually physically providing the documents or records requested," subverted the intent of the Act. 2
Ms. Sexton made handwritten comments in the margins of the copy of her March 5 request attached to her May 8 appeal; she also made a number of comments and notes on the copy of the City's response that she provided in accordance with KRS 61.880(2). For instance, Ms. Sexton complained that "limited documents were provided" or commented that certain responses were "incomplete." She also noted that some information was "missing" and questioned the lack of responsive documents in some cases. 3
Resolution of this appeal turns partially on the application of KRS 61.872(3)(b), pursuant to which a person is entitled to inspect public records "[b]y receiving copies of the public records from the public agency through the mail. " However, "the public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located" only after he "'precisely describes the public records which are readily available within the public agency. . . ." KRS 61.872(3)(b). See 03-ORD-067; 14-ORD-198; 15-ORD-212. In construing this provision, the Attorney General has consistently observed that KRS 61.872(3)(b) places a greater burden on requesters who wish to access public records by receipt of copies through the mail or without first conducting onsite inspection. 99-ORD-63, p. 3 (citation omitted). Whereas KRS 61.872(2) merely requires a requester to "describ[e]" the records which he wishes to access by onsite inspection, 4 KRS 61.872(3)(b) requires the requester to "precisely describe" 5 the records that he wishes to access by receipt of copies by mail. This degree of precision applies whether the request asks for the records in hard copy or electronic format "as the difficulties associated with identifying and locating all responsive documents" are the same. 16-ORD-242, p. 5.
In summary, the Open Records Act contemplates public access to records "by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. " 03-ORD-067, p. 4; 09-ORD-106; 17-ORD-010. A requester who both lives and works in the same county where the public records are located, such as Ms. Sexton, may be required to inspect records prior to receiving copies. Id. See 14-ORD-200; 17-ORD-010. On the other hand, a "requester whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of the records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. ..." 03-ORD-067, p. 5; 04-ORD-011; 09-ORD-106; 14-ORD-200; 18-ORD-068. The evidence of record establishes that Ms. Sexton lives and works in Burgin, a city located in Mercer County, Kentucky; likewise, the records are located in Burgin. Accordingly, Ms. Sexton does not satisfy the threshold requirement of KRS 61.872(3)(b); the City was permitted to require her to conduct onsite inspection of records potentially responsive to her March 5 request prior to furnishing copies. See 08-ORD-132; 09-ORD-106; 17-ORD-010. Although Ms. Sexton improperly framed some items of her March 5 request, Ms. Russell nevertheless agreed to provide her with access to all existing documents that may be responsive during regular office hours per KRS 61.872(3)(b), and provide her with copies if desired. Nothing else was required in relation to existing documents responsive to Ms. Sexton's request. See 12-ORD-128.
Early on, this office clarified that "[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, the Attorney General 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). Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id. p. 5, OAG 91-12, p. 5. See KRS 61.871, KRS 61.872(1) - (2). A public agency is only able, in lieu of denying a request for information, to make any non-exempt records that may contain the information being sought 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; 14-ORD-073. Here, the City agreed to provide Ms. Sexton with all existing documents potentially responsive to each item of the request and fully explained why no additional documents exist rather than simply denying the request as to nonexistent records.
The right to inspect records, and the corollary right to receive copies, 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. A public agency cannot produce that which it does not have nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that a certain record exists. 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; 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. 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, nor is the Attorney General "empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." 08-ORD-206, p. 1; 12-ORD-231. When some of the documents requested have been disclosed, this office has declined to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 4; 12-ORD-087. When a public agency denies that additional responsive documents exist, as in this case, and the record on appeal does not contain any evidence to refute that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9; 11-ORD-037 (denial upheld in the "absence of any facts or law importing the records' existence").
The record on appeal is devoid of any evidence to conclusively refute the City's position that no additional documents exist notwithstanding any discrepancies that Ms. Sexton perceives between the records ultimately provided and those she believes may or should exist. "[O]bjections to alleged inaccuracies and omissions in the records disclosed" cannot be resolved in the context of an open records appeal. 10-ORD-178, p. 2; 12-ORD-162. Nor can this office direct a public agency to create records "or declare its failure to do so a subversion of the intent of the Open Records Act. " 95-ORD-48, p. 2; 15-ORD-164. Likewise, the City was not statutorily obligated to create a record or compile a list in response to items of the request where that would have been required in order to comply. The City did not violate the Open Records Act. See 16-ORD-195.
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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