Opinion
Opinion By: Andy BeshearAttorney General;Gordon SloneAssistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Frankfort Plant Board ("FPB") violated the Open Records Act in its disposition of Evelynn Sova's request for "a list of all residential properties that have had the water disconnected within the last 30 days." For the reasons stated below, we find that FPB's initial response was deficient, but that it corrected the error on appeal.
On October 22, 2018, Evelynne Sova ("Appellant") sent an email request 1 to FPB requesting "a list of all residential properties that have had the water disconnected within the last 30 days." Hance Price, attorney for FPB, responded on October 25, 2018, by email, stating that the records were exempt from inspection under KRS 61.878(1)(a) "since they contain information of a personal nature and the disclosure would constitute an unwarranted invasion of personal privacy. " FPB also stated that "[A] public agency has no obligation to create records or to create lists of material; only to produce the non-exempt records it maintains in its possession. Consequently, FPB is not required to provide the records you seek." Appellant appealed that denial to this office. On appeal, FPB stated that it "does not maintain a list of all residential properties that have had the water disconnected within the last 30 days. . . ."
Analysis . In its initial response to Appellant, FPB first stated that the requested records were exempt, but then stated that a public agency must only produce non-exempt records and has no obligation to create records. This response could easily be understood as saying that FPB possessed responsive records, but was refusing to provide those records under the personal privacy exemption at KRS 61.878(1)(a). 2 It was only on appeal that FPB affirmatively stated that it "does not maintain a list of all residential properties that have had the water disconnected within the last 30 days."
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. As it is now clear, no responsive records exist for the request, and FPB was obligated to affirmatively so state in its response to Appellant. OAG 90-26, p. 4 (holding that "[i]f a record of which inspection is sought does not exist, the agency should specifically so indicate"). See, e.g. , 02-ORD-144, p. 3 ("[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to [state their nonexistence] in clear and direct terms . . . . While it is obvious that an 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" ). In this case, FPB did not make such an affirmative statement in its initial response, but corrected its error on appeal. Further, a public agency is not required to compile a list or to create a record in response to an open records request. See 02-ORD-165, p.4; OAG 76-375; OAG 81-333; OAG 85-51; OAG 90-101; 93-ORD-50. Having discharged its duty, although belatedly, to state the nonexistence of the requested records in clear and direct terms, we find that FPB has now met its burden under the Act.
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 KRS 61.872(2) states that a request under the Open Records Act "shall be hand delivered, mailed, or sent via facsimile to the public agency." This office has recognized, on a number of occasions, that "unless the parties (meaning the requester and the public agency) enter into an express agreement, or consent by a clear course of conduct, to transact their open records business by email," a public agency is not obligated to honor an emailed request. See, e.g. , 98-ORD-167; 98-ORD-193; 03-ORD-162; 04-ORD-090, n. 2; 06-ORD-018; 06-ORD-086; 07-ORD-033; 12-ORD-036; compare 07-ORD-105. "Such a 'course of conduct arises when the requester transmits, and the agency accepts without objection, an open records request by email.'" 12-ORD-036, p. 2, n. 1. In choosing to respond to Appellant's email without objection, FPB waived any issue regarding the method of submission. Accordingly, our analysis will focus on the merits of Appellant's appeal.
2 KRS 61.878(1)(a) allows a public agency to exempt from disclosure: "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy[.]"