Opinion
Opinion By: Andy BeshearAttorney General;Michelle D. HarrisonAssistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Department of Fish and Wildlife ("Department") violated the Open Records Act in the disposition of Betty Boles Ellison's October 29, 2018, request "to examine the following records and documents from the Kentucky Fish and Wildlife [Education and Resource] Foundation (KFWF) within the [Department]":
Any and all funds/monies accumulated during the fiscal year[s] of 2015-2017 by the KFWF including but not restricted to sales of Trophy Elk and Deer Tags; Carp Harvests; Camp Scholarship Funds; Camper Sponsors; sales of license plates and any other merchandise; all gifts of money and real property; individual and corporate donations and gifts; grants of any sort; any gifts/ donations to/from the Salato Wildlife Education Center; any and all gifts by other auxiliary organizations within the KWF such as the Kentucky Conservation Coalition; restricted and unrestricted gifts/ donations; stocks, bonds and legacy gifts; any gifts/ donations coming from 401(K) or IRA accounts, and all funds acquired in any other manner.
Ms. Ellison directed her October 29 request to Leigh Powers, General Counsel, Kentucky Tourism, Arts and Heritage Cabinet, who forwarded the request to Department Records Custodian Jeff Bardroff.
In a timely written response per KRS 61.880(1), Mr. Bardroff advised Ms. Ellison that KFWF "is a Kentucky non-profit corporation and a charitable organization founded in 1994 to support the Salato Wildlife Education Center and conservation education programs for Kentucky's youth." Implicitly relying upon the definition of "public agency" found at KRS 61.870(1), Mr. Bardroff stated, "It is not a state agency, was not created by a state agency and is not established or controlled by a state agency. Thus, it is not subject to the Open Records Act. " 1 Mr. Bardroff also provided Ms. Ellison with a mailing address for KFWF. "As a courtesy," Mr. Bardroff enclosed a copy of certain documents responsive to Ms. Ellison's request, which the Department maintains, "that may not be complete."
In her undated letter of appeal, Ms. Ellison stated that in 1994, the Department "created a shadow agency, the Kentucky Fish and Wildlife Resource Foundation, Inc. . . . a non-profit and non-stock entity-IRS 509(a)(3)-whose incorporation documents" were attached. Ms. Ellison questioned whether "IRS 509(a)(3)" applies to charities, implying that such a determination is dispositive. 2 Ms. Ellison also noted that the Salato Wildlife Education Center is located on the Department's campus and that Rachel Crume, a Department employee, "is also the authorized officer of conservation organization for [KFWF], which used the Department's logo and she signs [KFWF] checks." 3 She requested assistance with "shining the light on this particular aspect of collusion between the Department and the [KFWF]."
In responding to Ms. Ellison's appeal, Ms. Powers reiterated that KFWF is "a non-governmental entity, which was not created by, established by, nor controlled by a state agency [.]" She further stated that the Department was not the custodian of any KFWF records and it already made any documents it possessed available to Ms. Ellison. Should Ms. Ellison wish to receive a copy of the annual financial report of the Department, Ms. Powers advised, "she should contact the Finance and Administration Cabinet, Office of the Controller," as it mandates that all charities affiliated with government agencies file such financial records per KRS 42.540. In reply, Ms. Ellison reiterated her prior arguments regarding the shared address of KFWF and the Department, as well as that of individual members of the 2018 KFWF Board of Directors, in support of her position that KFWF records were subject to provisions of the Open Records Act.
However, the dispositive inquiry is not whether the Department and KFWF are "intertwined" as Ms. Ellison suggested; likewise, the question is not whether the records of KFWF are subject to provisions of the Open Records Act, i.e,. whether KFWF is a "public agency" within the meaning of KRS 61.870(1). 4 Rather, the question presented is whether the Department, to which Ms. Ellison directed her October 29 request, and which is the focus of this appeal, violated the provisions of the Act in largely denying that request based on the nonexistence of any responsive documents in its possession beyond those already provided. Both our independent research and information the Department provided in response to a request made by this office pursuant to KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, validate its disposition of Ms. Ellison's request.
The Department cannot produce that which it does not have nor is the Department required to "prove a negative" in order to refute a claim that certain records exist in the possession of the agency unless the requester first makes a prima facie showing. See
Bowling v. Lexington Fayette Urban Cty. Gov't, 172 S.W.3d 333, 340-341 (Ky. 2005); 07-ORD-188; 16-ORD-172. 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" ); 11-ORD-074; 12-ORD-195. A public agency violates KRS 61.880(1) "if it fails to advise the requesting party whether the" records exist, but discharges its duty under the Act in advising that records being sought do not exist following a reasonable search, and explaining why, if appropriate. 98-ORD-154, p. 2 (citation omitted); 14-ORD-204. Although the General Assembly has recognized "an essential relationship" between the intent of the Open Records Act and the intent of Chapter 171 of the Kentucky Revised Statutes, relating to management of public records, at KRS 61.8715, the Act only applies to "public record[s.]" 5 See KRS 61.870(2)
Accordingly, the relevant questions in disputes arising under the Open Records Act are whether the public agency prepared, owned, used, possessed, or retained the records being sought and, if so, whether the records are open to public inspection. 99-ORD-202, p. 2; 09-ORD-073. In other words, the Open Records Act only applies to records which are in existence and in the possession or control of a public agency. 99-ORD-202, p. 5. "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. 6 If the Department had opted to acquire the financial records of KFWF during the normal course of business, and it currently possessed a copy, those records would be "accessible as non-exempt public records. " 99-ORD-202, p. 2. However, the Attorney General is "not empowered to declare, in the context of an open records appeal, that [the Department'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; 15-ORD-190.
In 95-ORD-125, this office held that the Louisville Firefighter Pension Fund properly denied a request for "confirmation tickets" documenting investment transactions executed on its behalf by a private corporation hired to manage the assets of the agency. Because the Fund neither possessed nor used the documents, the "confirmation tickets" could not properly be characterized as "public records" of the Fund within the meaning of KRS 61.870(2). 7 At page 6, the Attorney General reasoned, "Although the Fund was entitled to the confirmation tickets from the investment company, it determined they were not needed because information contained in them [was] adequately set out in the monthly accounting statements." Id. It is not the function of this office, the Attorney General concluded, "to substitute its judgment or the judgment of a third party for that of a public agency in deciding what records need to be created or retained." Id. The Attorney General partially relied on
Forsham v. Harris, 445 U.S. 169, 186 (1980), and
Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 152 (1980), in which the United States Supreme Court held that "an agency must first either create or obtain a record as a prerequisite to it becoming an 'agency record' within the meaning of [the Freedom of Information Act, 5 USCS § 552]." Forshsam, 445 U.S. at 305.
The Supreme Court determined that "FOIA applies to records which have been in fact obtained, and not to records which merely could have been obtained." Id. at 307. Conceding that the Open Records Act does not track the language of the FOIA, in 99-ORD-202 this office noted the laws are identical in at least one critical respect: "Neither law imposes a duty on the public agency to create records." Id. , p. 5. Accordingly, the Attorney General concluded that the holding in Forsham "applies with equal force to agencies governed by the Open Records Act. " Id. 08-ORD-206; 16-ORD-019.
Further, "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; 06-ORD-098; 09-ORD-101. 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. Moreover, when some of the documents requested are 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; 10-ORD-195. Although Ms. Ellison may believe that additional responsive documents not only should exist, but currently do exist in the Department's custody or possession, the Attorney General will not adjudicate that dispute. See 16-ORD-195. The record on appeal is devoid of any evidence to refute the District's position that no additional documents responsive to Ms. Ellison's request exist notwithstanding any discrepancies that she perceives between the records provided and the records that she believes may or should exist in the possession of that agency. Based upon the foregoing, this office affirms the Department's disposition of Ms. Ellison's October 29 request.
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.
Footnotes
Footnotes
1 See 14-ORD-122.
2 In response to a request made by this office pursuant to KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, the Department ultimately clarified that, "A [S]ection 509(a)(3) entity is a 'supporting' foundation geared toward supporting a single charity or entity (such as the Salato Wildlife Education Center and Game Farm)." The Department noted that paragraph 3.2 of the Articles of Incorporation "states the 'Foundation is prohibited from engaging in any activity that would prevent it from being treated as an organization described in Section 501(c)(3) of the Internal Revenue Code." The Foundation received its 501(c)(3) status a year after its 1994 formation.
3 The Department also clarified this issue on appeal. The Foundation does maintain office space at the Department, Ms. Powers explained, and the Board of Directors chooses to receive its official mail at the Foundation office. However, none of the Directors are Department employees.
4 According to its website, KFWF is a 501(c)(3) charitable organization. "It was created in 1995 shortly after the opening of the Dr. James C. Salato Wildlife Education Center. Through charitable donations by individuals and corporate sponsors , the Foundation works with the [Department] to support the efforts of the Salato Wildlife Education Center, conversation education programs for Kentucky youth, and the acquisition of land and wetlands for wildlife habitat." https://kentuckywildlife.com/about-kentucky-fish-wildlife-foundation. (Emphasis added.) To that end, KFWF and its Board of Directors "actively seek the sponsorship of major corporations." Id. The record on appeal is devoid of any evidence to suggest KFWF receives any of the funds it expends in the Commonwealth from state or local authority funds. See KRS 61.870(1)(h); 11-ORD-142. Compare 15-ORD-205. The Attorney General has recognized, on a number of occasions, that a private corporation, whether non-profit or for profit, is not a public agency for purposes of the Act unless it "derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds." See 15-ORD-121; 16-ORD-004; 17-ORD-248.
5 KRS 61.870(2) defines "public record" as "all books, papers, maps, photographs, cards, types, discs, diskettes, recordings, software or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency."
6 This office has consistently recognized that "lack of actual possession is not a sufficient basis for denying access to records" if the records being sought are being held "at the instance of and as custodian on the [public agency's] behalf[.]" 08-ORD-206, pp. 7, 13. See 00-ORD-207(settlement agreement in physical custody of insurance carrier); 04-ORD-123; 05-ORD-015; 06-ORD-147; 08-ORD-206. "In the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record." 04-ORD-123 (quoting City of Louisville v. Brian Cullinan , Nos. 1998-CA-001237-MR and 1998-CA-001305-MR (Ky. App. 1999))(unpublished). See 16-ORD-172. Compare 17-ORD-276.
7 See 96-ORD-41 (holding that Department of Military Affairs properly denied request for documents relating to vending services at air national guard facility where those records were prepared by, and in the possession of, a private corporation, and were never in the Department's possession); 97-ORD-15; 98-ORD-90; 09-ORD-009.