Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Summary : City of Ravenna violated Open Records Act in its initial response to request for records by failing to affirmatively state that the requested ordinance did not exist, but corrected its error on appeal by stating that the requested record does not exist.
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 William Van Cleve's request for a copy of an ordinance that established the position of School Resource Officer. For the reasons stated below, we find that the City failed to affirmatively indicate, in its initial response, that no responsive record existed, but corrected the error on appeal.
By letter dated June 12, 2018, William Van Cleve ("Appellant"), made the following request to the City:
According to KRS 83A.130 Par (2) and Par (12) the City Council shall by ordinance establish all appointive offices and duties and responsibilities of those offices and codes, rules and regulations for the public health, safety and welfare. I would like a copy of those ordinances that established the appointive offices of the Fire Chief, Chief of Police, Police Officers, School Resource Officer, City Clerk and Public Service Workers.
Ashley Moore, Ravenna City Clerk, responded on June 13, 2018 on behalf of the City. Ms. Moore's response was that: "Mayor Tipton and I are working on your request received on June 12, 2018. We will inform you as soon as your request is fulfilled so that you may come by the office and pick up the information." The letter of appeal states that Appellant received, on June 14, 2018, the requested records, other than the ordinance that established the School Resource Officer. He appeals because he did not receive the ordinance.
Cory M. Erdmann, attorney with Erdmann & Stumbo, PLLC, timely responded to the appeal on behalf of the City. Mr. Erdmann stated, in pertinent part, that "[t]here is no separate ordinance related to the School Resource Officer, and the City is not compelled to create records in response to an open records request."
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. As it is now clear, no responsive records exist for the request regarding the ordinance establishing the School Resource Officer. The city was obligated to affirmatively so state in its response to Appellant. OAG 90-26, p. 4 (holding that "[i]f a record of which inspection is sought does not exist, the agency should specifically so indicate"). See, e.g. , 02-ORD-144, p. 3 ("[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and ? it is incumbent on the agency to [state their nonexistence] in clear and direct terms ? . While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient"). In this case, the City did not make such an affirmative statement in its initial response but has corrected its error on appeal. Having discharged its duty, although belatedly, to state the nonexistence of the ordinance in clear and direct terms, we find that the City has now met its burden under the 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.