Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Summary : The Department of Public Advocacy violated KRS 61.880(1) when it failed to timely respond to a request for records and when it failed to advise the requesting party whether the requested record exists. The Department did not violate the Act where it denied a request for copies of case notes that did not exist. DPA provided a copy of a requested résumé in the course of the appeal. Therefore, issues relating to that request are now moot, pursuant to 40 KAR 1:030, Section 6
Open Records Decision
The question presented in this appeal is whether the Department for Public Advocacy ("DPA") violated the Open Records Act in its disposition of an open records request submitted by Donald R. Phillips ("Appellant"). For reasons stated herein, we find that DPA violated KRS 61.880(1) when it did not respond to Appellant's request for records in a timely manner. DPA also violated KRS 61.880(1) by failing to affirmatively advise Appellant whether the CD's he had requested exist. We find that DPA did not violate the Act where it denied the request for case notes for Attorney Will Collins because those records did not exist. DPA provided Appellant with a copy of a requested résumé in the course of this appeal. Therefore, issues relating to that request are now moot, pursuant to 40 KAR 1:030, Section 6.
On July 3, 2018, Appellant submitted a letter requesting records from DPA. Appellant indicated that he had previously requested records from DPA, that he described as "my complete case file resulting from the 'assistance' I received in the above referenced action from [DPA Attorney] William Collins." Appellant acknowledged that he had received records, but complained that the case file was incomplete. Appellant submitted this second request seeking "one copy of the listed materials, and all other materials not previously provided." Appellant specifically listed three records, which he described as: "1. Mr. Collins' notes; 2. Mr. Edwards' Resume 1; and 3. CD's provided by the Attorney General's Office[.]"
On July 17, 2018, Appellant submitted an appeal with this office indicating that he had not received a response from DPA. Deputy Public Advocate Brian Scott West submitted a response on behalf of DPA on July 26, 2018. Mr. West stated that DPA received the open records request on July 9 and mailed a response on July 13, 2018. Mr. West provided this office a copy of the response. The response to the open records request was sent by Cara Lane Cape, MSW.
DPA did not affirmatively advise Appellant whether the requested CDs exist. In the response letter from Ms. Cape, Appellant was informed that "while you did not receive a copy of the electronic CDs, a hard copy paper version of these documents were sent with your record on June 7, 2018." In the appeal response, Mr. West explains that, "CD's contain pdfs of discovery" and "DPA then downloads the contents and prints them off." Mr. West generally states that "such CD's are not retained by DPA after the contents are downloaded into our case management system." However, Mr. West did not affirmatively indicate whether the CDs provided by the Attorney General for Appellant's case file exist.
Regarding Mr. Collins' notes, Mr. West states that Appellant has all of the contents of the case file. Mr. West states that "any notes that were retained by Mr. Collins as his attorney were in the file; there is no file beyond that which has already been produced." Ms. Cape addressed the issue in the response letter. She states that she contacted Mr. Collins, and he "confirmed any notes he would have taken would be in the file already provided / sent with your records on June 7, 2018." Mr. West references an email message to him from Mr. Collins, wherein he verified that the entire contents of his file were loaded into the DPA computer case tracking system, JustWare. Regarding the résumé of Mr. Edwards, Mr. West states that the résumé was not in the case file, but Mr. Collins obtained a copy for Appellant. Ms. Cape attached a copy of the résumé to the response letter that she mailed to Appellant.
We find that DPA did not comply with the procedural requirements of the Open Records Act. DPA received Appellant's request for records on July 9 but did not issue a response until four days later. The Open Records Act requires a public agency to issue a written response to an open records request within three (3) days. KRS 61.880(1) provides, in relevant part:
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. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In construing the language of KRS 61.880(1), the Kentucky Court of Appeals stated: "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208; 07-ORD-226; 12-ORD-211; 17-ORD-179. The Attorney General has consistently recognized that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125; 12-ORD-085; 15-ORD-152. This provision contemplates that a public agency shall make a final disposition of a request for public records within three (3) business days. 18-ORD-074. Thus, DPA violated the Act when it did not respond to Appellant's request within the statutorily required timeframe.
DPA also violated KRS 61.880(1) by failing to advise Appellant whether the CDs relating to his case file exist. DPA's initial response only indicates that Appellant was provided paper copies of the records on the CDs, in lieu of the CDs. The response to the appeal does not affirmatively indicate whether the requested CDs exist. We have consistently found that a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act by affirmatively indicating that no such records exist (or are in the possession of the agency). 04-ORD-205, p.4; 11-ORD-122; 12-ORD-056. DPA failed to discharge its duty under the Act by neglecting to inform Appellant whether the CDs from the Attorney General's Office still exist. The omission was not corrected in the response to the appeal. Accordingly, we find that DPA further violated KRS 61.880(1) by failing to affirmatively advise whether the requested records exist.
Regarding Mr. Collins' notes, DPA complied with the Open Records Act when it informed Appellant that no additional records exist in its possession. The Attorney General has long recognized that a public agency cannot afford a requester access to a nonexistent record or those records it does not have in its possession. 07-ORD-190, p. 6, 06-ORD-040. 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"). In the absence of the requisite prima facie showing, or any evidence to suggest that additional notes exist, we find that DPA complied with its duty under the Act.
The burden of proof in this appeal is imposed on DPA, pursuant to KRS 61.880(2)(c) 2. In keeping with the burden of proof, the public agency must offer some explanation for the nonexistence of the records. 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" ); 04-ORD-075; 12-ORD-195. The record shows that DPA satisfied the burden of proof. Ms. Cape contacted Mr. Collins and verified that he uploaded all of his records into the JustWare system. Mr. West describes DPA's search for additional records. He also refers to Mr. Collins' email message verifying that no additional records are in his possession. A public agency is required to "make a good faith effort to conduct a search using methods which can reasonably be expected to produce records requested[.]" 95-ORD-96, p.4 (citing Cervey v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D.Colo. 1978)). DPA made the required good faith effort to find and disclose all of Mr. Collins' case notes. In the absence of any facts from which the existence of additional records can be presumed, we affirm DPA's disposition of this request.
The issues relating to Mr. Edwards' résumé are now moot. Ms. Cape provided Appellant a copy of the requested résumé with the July 13 response letter. Absent any evidence to the contrary, this office assumes that DPA has honored Appellant's request. 40 KAR 1:030, Section 6, provides: "Moot complaints. If 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." Consistent with this mandate, the Attorney General has held that if access to public records is initially denied but subsequently granted, "the propriety of the initial denial becomes moot. " 04-ORD-046, p. 5(citing OAG 91-140). DPA subsequently provided a copy of the résumé requested by Appellant. Therefore, any issues related to that request are now moot. This office must decline to issue a decision relating to the résumé of Mr. Edwards.
A party aggrieved by this decision shall 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.
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