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 Muldraugh violated the Open Records Act in denying Jerry Noel's October 9, 2018, request for "a copy of the pages Public [Works Supervisor Anthony] Lee read from at the 10/8/18 [City Council] meeting." City Clerk/Treasurer Caroline J. Cline issued a timely written response per KRS 61.880(1) on behalf of the City. In her October 10, 2018, letter to Mr. Noel, the City Clerk stated that upon receipt of his request, she contacted Mr. Lee to request a copy of the pages, but he advised "the papers were kept by him at his home and that he purchased the pages from which they were written." Because Mr. Lee declined to provide the City Clerk with a copy of the requested pages, and she did not otherwise have a copy, she denied Mr. Noel's request. On appeal, Mr. Noel emphasized that he is a member of the Muldraugh City Council and he requested the pages "to verify if the statements made by the public works department for Muldraugh are true."
This office first notes that "[o]ur analysis does not turn on the purposes for which the request for information is made or the identity of" the requester. Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994). See 06-ORD-084 (KRS 61.872(2) does not authorize public agencies to inquire into a requester's motives in seeking access to public records) ; 10-ORD-062. Rather, "the Legislature clearly intended to grant any member of the public as much right to access to information as the next." Zink, 902 S.W.2d at 828. The only exception to this rule is found at KRS 61.874(4)(b), which is not implicated here.
Upon receiving notification of Mr. Noel's appeal, Mayor Joseph E. Noon, Sr. responded on behalf of the City. Mayor Noon reiterated the City Clerk's response, but further stated that Mr. Lee "advised us that he does not enter anything into the book while working for the City of Muldraugh 1 and therefore does not feel the book is a record owned and maintained by the City. Once again, Mr. Lee refused to provide the copies" requested. The record on appeal is devoid of any evidence to refute the City's position that Mr. Lee did not purchase the book containing the pages in dispute with public funds, and that he did not purchase the book in the course and scope of his employment, or make any entries while discharging the duties of his employment. 2
Our scope of review in resolving the current dispute is defined at KRS 61.880(2) , pursuant to which the Attorney General "shall review the request and denial and issue . . . a written decision stating whether the agency violated provisions of [the Open Records Act] ." See 09-ORD-186; 12-ORD-065. Further, this office has consistently recognized that "it is not, in general, within our statutory charge to resolve questions of fact or to otherwise act as a trier of fact." 09-ORD-120, p. 4. 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's Office "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.
The right to inspect only attaches if the records in dispute are "prepared, owned, used, in the possession of or retained by a public agency. " 3 02-ORD-120, p. 10. A public agency violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record[s] exist[]," but discharges its duty under the Act in affirmatively indicating that no such record[s] exist[], or advising that it lacks possession and explaining why, following a reasonable search, as the City did here. 13-ORD-052, p. 3; 99-ORD-98; 04-ORD-205. The Attorney General has consistently so held. 04-ORD-205, p. 4; 99-ORD-98; 12-ORD-065; 14-ORD-049.
Although the intent of the Open Records Act has been statutorily linked to the intent of KRS Chapter 171, pertaining to management of public records, 4 the Act only regulates public access to records that currently exist and that are in the possession or custody of the public agency to which the request is directed. 99-ORD-202, p. 5; 16-ORD-019. "It does not impose an obligation on agencies to create, procure, or retrieve a record to accommodate a request. This is not to say that a public agency can somehow secret away public records on private premises, and thus avoid the requirements of the Open Records Act. " Id. , p. 5. 5 For example, if the City had opted to maintain a copy of the pages from Mr. Lee's book, insofar as the messages pertained to "functions, activities, programs, or operations funded by state or local authority" 6 those pages would arguably have been "accessible as non-exempt public records, " assuming that no statutory exemptions applied to part or all of the pages. 7 99-ORD-202, p. 2; 16-ORD-019. However, existing legal authority confirms the Attorney General is "not empowered to declare, in the context of an open records appeal, that [the City's] failure to require that the records be submitted to it, and managed and maintained as public records, constitutes a violation of the Open Records Act. " Id. See 06-ORD-201; 12-ORD-098. Compare 11-ORD-105 (agency violated the Act in denying request for photographs that were "given" to an employee upon his retirement, in accordance with a "common practice" of making copies in case the originals were lost or destroyed, and the agency was required to retrieve copies of responsive photographs from retired employee to facilitate public access to records on agency premises).
"Because the requested [pages were] not 'prepared, owned, used, in the possession of or retained by' the [City], as evidenced by the record, the [City] fully complied with the Open Records Act by affirmatively indicating as much to Mr. [Noel] in a written response within three business days, and providing a credible explanation for [its] lack of possession and custody. " 06-ORD-039, p. 5. See 17-ORD-223 ("Regardless of whether [Kentucky Department of Education, 'KDE'] should or could have maintained any such records prior to" a named employee separating from her employment at KDE, a question this office did not reach, said employee "retired prior to [the] request and the record is devoid of any evidence to substantiate his belief that" said employee "created responsive text messages or that KDE ever possessed the records even assuming that she did."); 17-ORD-050.
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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