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Opinion

Opinion By: Andy Beshear,Attorney General;Sarah Ellen Eads Adkins,Assistant Attorney General

Open Records Decision

The question presented in this appeal is whether Louisville Metro Government's Department of Human Resources violated the Open Records Act in denying an open records request submitted by Appellant Mariana Lemieux. For reasons stated herein, we find that Louisville Metro violated the Open Records Act by failing to make a good faith search for the requested records.

On November 13, 2018, Appellant submitted an Open Records Request to Louisville Metro seeking "audio files (unedited) or copies thereof which have recorded all phone conversations that took place between myself and Janice Baldon-Gutter and Kate Dunn." Louisville Metro timely responded to her request on November 16, 2018, with a one-sentence email, stating, "Human Resources has advised there are no responsive records." Appellant then filed an appeal with this office on December 18, 2018, stating that she had previously received "partial transcripts of the phone conversations" requested and that "the audio files . . . from which the partial transcripts were created should still be in their possession." Louisville Metro responded to this appeal by letter, which, in its one-sentence entirety, reads: "The Human Resources Department of Louisville Metro Government confirms that the records sought by Ms. Lemieux do not exist."

A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. However, 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

Cerveny v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D.Colo. 1978)). Agencies meet the "good faith" standard by sufficiently documenting its effort to identify and locate responsive documents and explain why the records do not exist. See 16-ORD-097; 04-ORD-149; 17-ORD-273.

Though Louisville Metro affirmatively stated that the requested records do not exist, it was required to conduct a good faith search to locate the requested records and to explain why the records do not exist. In its response to this appeal, Louisville Metro failed to satisfy its burden of proof in sustaining the action under KRS 61.880(2)(c) by merely confirming in one sentence that the records do not exist. Louisville Metro did not state that it conducted a search for the records. It neither documented its effort to identify and locate responsive records, nor explained why the records do not exist. Thus, Louisville Metro did not meet the "good faith" standard and did not carry its burden of proof in denying the open records request.

A party aggrieved by this decision may 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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Requested By:
Mariana Lemieux
Agency:
Louisville Metro Government
Type:
Open Records Decision
Lexis Citation:
2019 Ky. AG LEXIS 15
Forward Citations:
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