Opinion
Opinion By: Andy BeshearAttorney General;J. Marcus JonesAssistant Attorney General
Summary: Pulaski County Judge Executive's Office violated KRS 61.880(1) by failing to respond to an open records request within three business days. The Judge Executive's Office also failed to properly invoke KRS 61.872(5) and provide a detailed explanation of the cause for delay in providing the requested records. The Office of the Attorney General cannot resolve a dispute relating to discrepancies, if any, between the records provided to requester and those sought, but the Judge Executive's Office conducted an adequate search for responsive records and met his burden of proof.
Open Records Decision
The issue presented in this appeal is whether the Pulaski County Judge Executive's Office violated the Open Records Act in the disposition of Ken Chaviers' ("Appellant") requests for records. For the reasons stated below, we find that the Judge Executive's Office violated KRS 61.880(1) 1 by failing to respond to the open records request within three business days after receipt of the request. We also find that the Judge Executive's Office violated KRS 61.872(5) 2 by failing to provide a detailed explanation of the cause for further delay in disclosure of responsive records beyond the mandatory three business days. We cannot resolve the dispute relating to alleged discrepancies between the records ultimately provided to Appellant and those sought. However, we find that the Judge Executive's Office conducted an adequate search for responsive records and met its burden of proof.
On July 5, 2018, Appellant submitted a request with the Judge Executive's Office seeking the following records:
1) A copy of the contract and worksheets for the 39 vehicles leased to Pulaski county be Enterprise leasing
2) The license plate numbers of each vehicle, and the employee which they are assigned, if applicable
3) Mileage records of all leased vehicles
On July 31, 2018, Appellant appealed the disposition of his request. Appellant states in his appeal that "I subsequently called the Pulaski County Judge Executives office on July 26, 2018 to follow up and the person answering the phone acknowledged receiving my request." He also states that "[a]s of this morning...it has been nine working days since I filed the request and I have received no response."
On August 10, 2018, the Judge Executive's Office responded to the appeal by faxing documents to this office, with a cover sheet stating, "[a] copy of this has also been sent to Mr. Ken Chaviers." Pursuant to KRS 61.880(2)(c) 3 and 40 KAR 1:030, Section 3, 4 this office contacted the Judge Executive's Office by letter and attached copies of the faxed documents to obtain verification that we had received accurate copies. We also asked the Judge Executive to verify that the faxed documents were responsive records for Appellant's requests.
On August 24, 2018, Pulaski County Attorney Martin Hatfield supplemented the Judge Executive's Office's response and disclosed additional responsive records. Mr. Hatfield states that "[t]he records previously faxed to your office from the office of Stephen B. Kelley, Pulaski County Judge Executive, and provided to Mr. Chaviers were intended to be in response to Mr. Chaviers' open records request." He added that it had "come to the attention of the Judge's office that the individual contracts and worksheets for the vehicles leased to Pulaski County? were accidentally left out of the information provided." Mr. Hatfield described the Judge Executive's Office's search for records and explained how additional contracts and worksheets were located. He verified that the Judge Executive had no additional responsive records. Appellant contact this office by telephone to verify that the County Attorney had personally contacted him and provided copies of the records. However, Appellant argued that those records are not responsive and the Judge Executive's Office has additional responsive records.
The Judge Executive's Office violated the procedural requirements of KRS 61.880(1) by failing to issue a timely written response to Appellant's request. The statute provides the procedure that a public agency must follow when responding to requests for records under the Act. In construing the language of KRS 61.880(1), the Kentucky Court of Appeals statesd "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; 06-ORD-190; 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; 05-ORD-190; 09-ORD-186; 12-ORD-085; 15-ORD-152. Thus, a response is required within three business days, and the Judge Executive's Office committed a procedural violation by failing to issue a timely written response to Appellant's request.
The Judge Executive's Office committed a second procedural violation by failing to cite the applicable statutory exception to a timely response and explain how it applied to any records withheld. If a response to a request for records requires more than the three business days mandated in KRS 61.880(1), a public agency is required to expressly invoke KRS 61.872(5), which states:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
16-ORD-210; 18-ORD-148. The Judge Executive's Office did not expressly invoke the statute in any of its written responses. The Judge Executive's Office also failed to specify which of the permissible reasons for delay applied, and to designate the place, time, and date upon which the records would be available to Appellant. Therefore, the Judge Executive's Office violated the Act when it failed to properly invoke KRS 61.872(5).
The Judge Executive's Office attempted to produce responsive records in the course of the appeal. However, Appellant argued that none of these disclosed records were what he sought. This Office generally declines 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.3; 10-ORD-195; 14-ORD-204. We have consistently recognized that "objections 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; 09-ORD-101. Therefore, we shall decline to determine whether the records disclosed by the Judge Executive's Office are the records described by Appellant.
However, KRS 61.880(2)(c) 5 places the burden of proof in an open records appeal on the public agency. The Judge Executive's Office must offer some explanation for the nonexistence of the requested 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" ); 12-ORD-195. We recognize that a public agency cannot produce that which it does not have nor is the agency required to "prove a negative" in order to refute a claim that certain records exist in the absence of a prima facie showing by the requester. See Bowling v. Lexington Fayette Urban Cty. Gov't, 172 S.W.3d 333, 340-41 (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"). Thus, in the absence of the requisite prima facie showing, or any evidence to suggest that additional records exist, we must support the Judge Executive's Office's assertion that it possesses no additional records that would be responsive to the request.
The Judge Executive's Office asserts that he has produced all of the records in his possession that are responsive to Appellant's request. The County Attorney also asserted that no additional responsive records exist, and he provided a description of the Judge Executive's Office's search for responsive records. A public agency is required to "expend reasonable efforts to identify and locate the requested records." 95-ORD-96; 17-ORD-183. Further, the 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)). Under the circumstances as presented here, we find that the Judge Executive's Office conducted a good faith search and expended reasonable efforts to identify and locate responsive records.
Appellant has not made a prima facie showing that the Judge Executive's Office has additional responsive records. This Office has found 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, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4. However, Appellant does not show that there is anything directing the Judge Executive's Office to create or maintain any of the requested records. Nor has Appellant presented any evidence that the Judge Executive's Office possesses additional responsive records. There is no support in the record for finding that the Judge Executive's Office has violated the Act by failing to maintain and produce the requested records. Accordingly, we find that the Judge Executive's Office has met his burden of proof.
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.
Andy Beshear
Attorney General
J. Marcus Jones
Assistant Attorney General
#327
Distributed to:
Ken ChaviersStephen B. KelleyMartin Hatfield, Esq.
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