18-ORD-207
October 30, 2018
In re: Oscar McGuffey/Office of the LaRue County Judge/Executive
Summary: LaRue County Judge/Executive cannot produce nonexistent records for inspection or copying, nor is a public agency required to “prove a negative” in order to refute unsubstantiated claim that certain records exist. Likewise, the Office of the Attorney General cannot resolve a dispute regarding a disparity between records provided to requester and those requested or issues concerning the content of information contained in the records provided. The Judge/Executive was not required to create a record to comply with request for information.
Open Records Decision
The question presented in this appeal is whether the Office of the LaRue County Judge/Executive (“Judge/Executive”) violated the Open Records Act in the disposition of Oscar McGuffey’s July 23, 2018, request to inspect “ANY & ALL funds, grants, state or federal money applied for and received by LaRue Co for the developement [sic] of LaRue Co. Environmental & Research & Educational Center[, and a]ny & all requirements, restrictions, and maintenance schedules, [pertaining] to said Grants & development of LaRue Co. E.R.E. Center.”1 Mr. McGuffey also requested, “any & all money spent on the developement [sic] of and maintenance cost of trails, invasive species removal, and natural grass management, or promotion of the Educational Center. Maintaining Borderline Fences Bid Process on construction of Pavilion [sic .]” In a timely written response per KRS 61.880(1), Director Bob Sims, Office of Community & Economic Development, acknowledged receipt of Mr. McGuffey’s request. Mr. Sims indicated that much of the request asked for information, rather than records, and would require the creation of a record that did not already exist.2 Thus, he stated that any information compiled would be in document form “(or printouts as the case may be) of the actual records on hand.” Mr. Sims further stated that he would be happy to respond to any questions that Mr. McGuffey might have upon reviewing the responsive documents. However, Mr. Sims advised, “some of these documents are stored and some may even no longer exist due to the expiration of retention schedules for documents as required by the state.” He estimated that it would take approximately two weeks to retrieve the documents requested.3
By letter dated September 19, 2018, Mr. McGuffey initiated this appeal, contending that Judge/Executive Tommy Turner and Mr. Sims had only provided “a small portion of records pertaining to the agreements with State and Federal agencies funding this project.” Specifically, Mr. McGuffey alleged that Judge/Executive Turner “failed to produce all records on the Tommy Turner Pavilion/outdoor classroom and the grant money received for that purpose.” He included a letter that he received from Judge Turner stating the county had “secured grant funds to construct the [P]avilion.” He also enclosed records, which, according to him, confirmed, “they received a grant in the amount of $54722.50 for adult education at the LaRue County Environmental Education Center in 2002.” He further expressed concern that no invoices appear to exist for the “picnic tables and specially coated trash receptacles[.]”
Upon receiving notification of Mr. McGuffey’s appeal, Judge/Executive Turner responded that he had disclosed all existing responsive documents, totaling 599 pages, including “documents from the Kentucky Heritage Land Conservation Fund (KHLCF) and any other agency.” Mr. McGuffey refers to “Federal Agencies” in his appeal. He also stated that no federal documents exist and there have been “no agreements, grants, funding, contracts or documents of any sort signed or transferred between me or anyone representing county government regarding the Environmental Center Property.” Judge/Executive Turner also noted that Mr. McGuffey has filed a complaint with KHLCF.
In addition, Judge/Executive Turner stated that Mr. McGuffey “has received all documents we have regarding the pavilion and its construction.” He acknowledged writing a letter that predated construction, stating, “grant funds have been received[,]” but clarified that no “state or federal grant funds” were used to construct the pavilion. Judge/Executive Turner reiterated that Mr. McGuffey has also received all existing documents responsive to his request for these records. With regard to invoices, the Judge again emphasized that Mr. McGuffey has received all responsive documents in the county’s possession.
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 Cty. 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; 15-ORD-164. 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. Moreover, when some of the documents requested have been disclosed, this office has generally 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; 14-ORD-204; 17-ORD-276.
As in this case, when a public agency denies that additional responsive documents exist, and the record on appeal supports rather than refutes that contention, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 11-ORD-037 (denial of request for nonexistent records upheld in the “absence of any facts or law importing the records’ existence”). Further, “questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act.” 04-ORD-216, p. 3; 10-ORD-178 (appellant’s “primary goal in pursuing” the appeal was to correct inaccuracies and omissions in his child support payment history by having the Attorney General intervene). The record on appeal is devoid of any evidence to conclusively refute the agency’s position that no additional documents responsive to Mr. McGuffey’s request exist notwithstanding any discrepancies Mr. McGuffey perceives between the records provided and those he believes may or should exist.4 See 17-ORD-127. “[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 is failure to do so a subversion of the intent of the Open Records Act.” 95-ORD-48, p. 2; 15-ORD-164. Likewise, the Judge/Executive was not statutorily obligated to create a record or compile a list containing any requested information that was not contained in existing records. See 16-ORD-090.
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. The Judge/Executive has provided Mr. McGuffey with all existing documents potentially responsive to each item of his request and credibly explained on appeal why no additional documents exist. See 14-ORD-209. Simply stated, “this office is not empowered to resolve a ‘swearing contest’ between the parties.” 98-ORD-146, p. 6. The absence of certain records that Mr. McGuffey believes may or should exist in the possession of the Judge/Executive “is, simply stated, not actionable in an Open Records Appeal.” 12-ORD-130, p. 5; 12-ORD-065 (appellant reasonably assumed that a “resignation letter” existed in light of statement by public official but relied on what could “generally be described as conjecture or assumption which, however logical, does not constitute proof”); 14-ORD-049. “[T]he Attorney General is not empowered to … resolve non-open records related issues in an appeal initiated under KRS 61.880(1).” 99-ORD-121, p. 17. See 12-ORD-110 (“whether the agency followed the required procedures or complied with governing law(s) aside from the Open Records Act is not a question that can be resolved here”)(footnotes omitted).
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.
Andy Beshear
Attorney General
Michelle D. Harrison
Assistant Attorney General
#414
Distributed to:
Oscar McGuffey
Tommy Turner
Kyle Williamson
[1] The LaRue County Environmental and Education Center was
“[d]eveloped through efforts of the LaRue County Fiscal Court and made possible by a grant by the Kentucky Heritage Land Conservation Fund.” http://www.laruecounty.org/parks.shtml. Revenue for the KHLCF “comes from the nature license plate, the state portion of the unmined minerals tax and environmental fines. The Environmental Education Council receives $150,000 of environmental fines each year for environmental education programs.” http://heritageland.ky.gov/Pages/default.aspx. “The Larue Environmental Education Center was purchased with ‘Nature's Finest’ license plate funds.” http://heritageland.ky.gov/Pages/LarueEnvEd.aspx.
[2] “The 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. For this reason, the Attorney General has consistently held that requests for information as opposed to requests for public records, “need not be honored.” 00-ORD-76, p. 3 (citing OAG 76-375); 04-ORD-080. In addressing this question, the Attorney General has long recognized that “obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying.” 04-ORD-080, p. 13 (citation omitted). 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), and KRS 61.872(2).
[3] The county was obligated under KRS 61.880(1) to not only issue a response within three business days, but also provide timely access to all existing responsive documents or properly invoke KRS 61.872(5), if appropriate, by citing that exception to KRS 61.880(1), providing a “detailed explanation” of the cause for delay, and specifying the date when all existing nonexempt documents would be available. Even assuming the county’s explanation was adequately detailed, this office has consistently recognized that vague estimates of how long the delay will be do not comply with KRS 61.872(5) and its response was deficient in this regard. See 12-ORD-105; 16-ORD-055.
[4] On October 25, 2018, Mr. McGuffey forwarded additional documentation for consideration as part of the record on appeal in reply to Judge/Executive Turner’s October 5, 2018, appeal response. Having reviewed all 10 pages, including Mr. McGuffey’s letter (dated October 18, 2018), this office finds that none of the information contained therein alters the relevant analysis or the outcome of this appeal. Issues concerning whether Judge/Executive Turner complied with unspecified “Federal guidelines” related to “the Assurance Agreement” signed by him are not justiciable in this forum; likewise, “it is not, in general, within our statutory charge to resolve questions of fact or to otherwise act as a trier of fact[,]” such as Mr. McGuffey’s claim that “more than twenty family members” witnessed Judge/Executive Turner make a statement regarding the grant. 09-ORD-120, p. 4. Insofar as Mr. McGuffey expressed concerns regarding any records of “tractor, mower and golf cart being sold [sic],” the analysis contained herein is equally applicable.
Nevertheless, upon receiving a copy of Mr. McGuffey’s correspondence from this office, Judge/Executive Turner provided additional clarification. The small tractor and the golf cart were purchased with General Fund dollars rather than grant funds; neither item has been sold. Most significantly, Judge/Executive Turner explained that he spoke with Community Enhancement Branch Manager Jodie Williams, Department for Local Government, who advised him as follows: “LaRue County would not have transferred, signed, received or talked with any federal agency or anyone from the federal government concerning this grant. There are federal reporting requirements that DLG must comply with but that would be between DLG and the Feds.” Ms. Williams further stated, “all of LaRue County’s correspondence, documentation and agreements would have been with the state, nothing with the Feds.” (Emphasis added.) Accordingly, Mr. McGuffey may contact Ms. Williams if he still has unanswered questions regarding the grant.