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 Henderson City-County Airport Board ("Board") violated the Open Records Act in denying Patricia Kushino's November 26, 2018, request for "an opportunity to obtain copies of public records of the current land deed (s) for the 153.23 acres" the Airport owns. By e-mail dated December 1, 2018, Secretary/Treasurer Kimber Heddens, Jr. advised Ms. Kushino that "airport deeds are filed at the courthouse and copies may be obtained there." In accordance with existing legal authority, this office finds the Board violated the Act in denying Ms. Kushino's request merely because another public agency also possesses a copy of the deed (s) in dispute; the Board's responses were also deficient under KRS 61.880(1) in failing to affirmatively indicate whether it maintained the deed (s). The record on appeal contains no evidence that Ms. Kushino's request was made to disrupt essential functions of the Board and its reliance on KRS 61.872(6) was therefore misplaced.
In response to Ms. Kushino's request for clarification as to "each specific exemption you feel justifies the refusal," Chris Hopgood, counsel for the Board, referenced KRS 61.872(4) to justify his client's position; he further cited KRS 61.872(6), because the Board believed that Ms. Kushino's request, "in light of the fact that deeds are available from a public County Clerk's Office, is intended to disrupt the daily business of the Airport [.]" In her December 13, 2018, letter of appeal, Ms. Kushino disputed the Board's reliance on both KRS 61.872(4) and 61.872(6), noting the Board, which "should hold the original deeds, is a public agency. " Ms. Kushino further emphasized that Mr. Heddens did not deny the Board possesses the deeds, but stated that she must obtain the deeds from the Clerk's Office, another public agency. In addressing the alleged intent of the request, Ms. Kushino noted that she asked the Board for the deeds because "the plat is complicated" and therefore she believed it was the best agency from which to acquire the deeds.
On December 19, 2018, this office issued a Notification to Agency of Receipt of Open Records Appeal to Mr. Heddens and Mr. Hopgood, advising that any response on behalf of the Board must be received no later than Thursday, December 27, 2018; neither copy was returned as being undeliverable. This office did not receive a request for any extension of time in which to issue a response, nor has anyone responded on behalf of the Board as of today. Accordingly, this office must assume the Board maintains that its reliance on KRS 61.872(4) and 61.872(6) was appropriate. However, existing legal authority does not support its position.
Over twenty (20) years ago, this office rejected the Board's initial and primary argument in holding that a public agency violated the Open Records Act by denying a request "on the basis that it was only the casual possessor of the records" instead of the "official custodian [as defined in KRS 61.870(5)]." 98-ORD-100, p. 4. As in this case, the agency whose records were in dispute did not deny possessing a copy of the records, but instead relied upon the fact such records were also readily available or more easily obtainable elsewhere. This "rationale does not support nondisclosure, and is not a legally recognized basis for denying an open records request." 00-ORD-16, p. 4 (citing 99-ORD-121); 04-ORD-059; 04-ORD-220; 06-ORD-131. It is only through full disclosure of a public agency's records that a requester can satisfy himself that the record is complete. Id. Here, as before, this office finds the agency's proposed interpretation of the concept of casual possession is overly broad; the Board cannot successfully invoke this concept under the circumstances. 98-ORD-100, p. 4.
In the absence of any basis to depart from the reasoning of 98-ORD-100 and the authorities upon which it was premised, the following excerpt from that Open Records Decision is controlling:
KRS 61.872(1) states that "[a]ll public records shall be open for inspection by any person, except as otherwise provided . . . ." More specifically, KRS 61.880(1) states that "[e]ach public agency upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision." The term "public record" is defined as "documentation regardless of physical form or characteristics, which [is] prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Nowhere in these provisions do we find a requirement that the agency both prepare and possess the requested records. [Footnote omitted.] Nor do we find any language which relieves the agency of these clearly established duties if the records are in the custody of another agency from which they could "more appropriately" be obtained. Rather, in construing these provisions, the Attorney General has recognized on several occasions that:
OAG 91-21, p. 4 (holding that the City of Owensboro improperly denied requester access to records in its custody although those records were "the responsibility of the State and County"); OAG 90-71 (holding that the Kentucky Board of Pharmacy improperly refused to release salary records of its employees on the grounds that the records could more appropriately be obtained through the Department of Personnel); 96-ORD-7 (holding that the Department of Corrections improperly referred inmate to the institutional records office for a copy of his resident record card when it too had custody of the card) ; and 98-ORD-17 (holding that Jefferson County Sheriff's denial of request for audits of his office would be improper if his office maintained a copy of the audits in addition to copies of the audits in the custody of the Revenue Cabinet). . . .
98-ORD-100, pp. 4-5. See 09-ORD-143 (adopting 98-ORD-100); 10-ORD-060 (KRS 61.872(4) does not "authorize a public agency to deny access to public records in its possession . . . based on an assertion that another agency is the 'primary custodian' of those records"); 13-ORD-151 (agency committed no substantive violation of the Act except to the extent it relied upon the concept of "casual possession"); 01-ORD-94; 04-ORD-203; 06-ORD-166; 07-ORD-241; 09-ORD-141; 12-ORD- ; 14-ORD-012; 15-ORD-190; 18-ORD-175.
These decisions establish that a public agency such as the Board "cannot avoid its duties under the Open Records Act by deferring to another public agency but must, instead, determine within three business days of receipt of a request for records in its custody and control, whether a statutory basis exists for denying the request and, if so, promptly notify the requester [KRS 61.880(1) ]. If not, the agency must immediately produce the records for inspection or mail copies upon receipt of prepayment for copies and postage [KRS 61.872(3) and 61.874(1)]." 11-ORD-149, p. 3. Regardless of whether Ms. Kushino "may also be able to access the records elsewhere, has obtained identical records from another source, or may possess other documents which contain some or all of the information being sought," the Board cannot evade its duty for this reason and its denial therefore violated the Act. 10-ORD-154, p. 5.
Further, the Board's initial responses lacked the specificity required under KRS 61.880(1) and 61.880(2)(c). This office has consistently recognized that 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 a claim that certain records exist in the absence of a prima facie showing by the complainant. See
Bowling v. Lexington-Fayette Urban Cty. Gov't, 172 S.W.3d 333, 341 (Ky. 2005); 11-ORD-037; 11-ORD-091. 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. However, in addressing the obligations of a public agency when denying access to public records based upon their nonexistence, this office has consistently observed that a public agency's "inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms ." 01-ORD-38, p. 9 (other citations omitted); 12-ORD-162. While it is obvious that a public agency "cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient. " 02-ORD-144, p. 3; 09-ORD-145; 10-ORD-215; 16-ORD-104.
Accordingly, as this office has consistently recognized, a response by a public agency violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," but a public agency discharges its duty under the Open Records Act in affirmatively so indicating. 98-ORD-154, p. 2 (citation omitted); 03-ORD-205, p. 3; 99-ORD-98; 04-ORD-205; 09-ORD-145; 10-ORD-060. It was "therefore incumbent on [the Board] to ascertain whether records exist[ed] that [were] responsive to [Ms. Kushino's] request, to promptly advise [her] of [its] findings, and to release to [her] all existing [nonexempt] records identified in [her] request." 03-ORD-207, p. 3. Insofar as the Board failed to affirmatively indicate whether it possessed a copy of the deeds in dispute, its response was deficient. See 09-ORD-145; 10-ORD-215; 14-ORD-107. The Board "was unable to discharge this duty because it failed to conduct any type of reasonable search to locate any responsive document(s) before denying the request and was therefore necessarily unable to identify the steps taken as required to satisfy its burden of proof under KRS 61.880(2)(c)." 1 14-ORD-045, p. 3.
The Board's reliance on KRS 61.872(6) was also misplaced. Its position that Ms. Kushino's request was intended to disrupt "the daily business of the Airport, " was based solely on "the fact that deeds are available from a public County Clerk's Office." As indicated above, this argument lacks merit and certainly does not constitute the requisite "clear and convincing evidence" necessary to justify reliance on KRS 61.872(6). To prevent agencies from exploiting KRS 61.872(6) as a means of circumventing the requirements of the Act, a refusal made on that basis must be sustained by clear and convincing evidence, prompting this office to observe that every request "causes some inconvenience to the staff of the public agency. . . . [Nevertheless, we] believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection. " 00-ORD-72, p. 3 (citation omitted). In determining whether a public agency has properly invoked KRS 61.872(6), this office "must weigh two competing interests: that of the public in securing access to agency records, and that of the agency in effectively executing its public function." Id. (citing 96-ORD-155); 11-ORD-173. The Attorney General has "rarely found sufficient evidence in the record on appeal to support a public agency's invocation of KRS 61.872(6) based on the agency's assertion that a single records request or repeated requests are intended to disrupt the agency's essential functions." 05-ORD-152, p. 5; 10-ORD-003; 13-ORD-145. That is especially true when, as in this case, no evidence has been presented. Compare 11-ORD-144.
The Kentucky Supreme Court validated the longstanding position of this office in
Commonwealth v. Chestnut, 250 S.W.3d 655, 664-665 (Ky. 2008), recognizing that a public agency "faces a high proof threshold [in denying a request based on KRS 61.872(6) since the agency must show the existence of the unreasonable burden by clear and convincing evidence, " and that it cannot rely on "inefficiency in its own internal recordkeeping system to thwart an otherwise proper open records request." Further, the "obvious fact that complying with an open records request will consume both time and manpower," the Court observed, "is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden. " It stands to reason that reliance on a flawed premise-that a public agency such as the Board is not required to provide a requester with a copy of any existing responsive document within its possession or custody, regardless of whether it can also be obtained from a different public agency-is not clear and convincing evidence. Accordingly, the Board also violated the Act in denying Ms. Kushino's request on the basis of KRS 61.872(6).
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.
Footnotes
Footnotes
1 A public agency is required to make "'a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested[.]'" 95-ORD-96, p. 4 (citation omitted); 18-ORD-164. Further, a public agency must specify the steps taken to identify and locate any such records per the standard of 95-ORD-96 in order to fully discharge its duty. See 08-ORD-206; 10-ORD-222; 11-ORD-041; 12-ORD-087.