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 Department of Public Advocacy ("DPA") or attorney Stephen Hughes violated the Open Records Act in denying Tyler McGuire's January 29, 2019, request, directed to "Stephen Hughes, Public Advocate," for his "entire case file, including all recorded proceedings and all work product materials" from Montgomery Circuit Court Indictment No. 12-CR-00172. DPA discharged its duty under the Act in conducting a reasonable search for the requested file and explaining the nonexistence of the file in the possession of the agency. Mr. Hughes, a private attorney during his representation of Mr. McGuire, was not a "public agency" under KRS 61.870(1) and the requested file was therefore not a "public record" under KRS 61.870(2). By letter dated March 3, 2019, Mr. McGuire challenged the inaction of the DPA and Mr. Hughes upon receipt of his January 29 request. Upon receiving notification of Mr. McGuire's March 3 appeal from this office, DPA General Counsel Melanie Lowe responded. Ms. Lowe stated that Charles Landon, the Directing Attorney of the Morehead Trial Office (to which Mr. McGuire directed his request), had no record of having received it.
At the outset, this office notes the Attorney General has consistently acknowledged the inability to conclusively resolve factual disputes, and specifically ones concerning actual delivery and receipt of a request. See OAG 89-81; 03-ORD-172; 04-ORD-223; 08-ORD-066; 12-ORD-204; 18-ORD-006. When presented with such factual disputes, the Attorney General has recognized that "this office is not equipped to resolve factual dispute [s] [when presented with conflicting factual narratives]." 96-ORD-70, p. 3. Rather, KRS 61.880(2)(a) provides that upon receiving a new Open Records Appeal, "the Attorney General shall review the party's request, and the public agency's response, and issue 'a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.' Given this specific statutory mandate, we decline to render a decision on [the factual dispute] ." 96-ORD-70, p. 3; 09-ORD-120; 14-ORD-132. As in these decisions, the record on appeal does not contain sufficient evidence concerning the actual delivery and receipt of the request for this office to conclusively resolve any related factual dispute. This office has no reason to question Mr. McGuire's position; however, the record is equally lacking in terms of any basis to question the veracity of DPA or to conclusively refute its position. Absent irrefutable proof that DPA or Mr. Hughes actually received Mr. McGuire's January 29 request for his case file, this office is unable to determine that DPA violated the Act from a procedural standpoint in failing to issue a written response within three working days per KRS 61.880(1). See 16-ORD-252.
Nevertheless, upon receipt of Mr. McGuire's appeal, DPA conducted a search of the archives for a case filed as Montgomery Circuit Court Indictment Number 12-CR-0072, but located none. In responding on behalf of DPA, Ms. Lowe confirmed, "No such file exists in DPA archives. " She also included a printout from CourtNet confirming that Mr. Hughes "handled Mr. McGuire's case as private counsel contracting with DPA." 1 For this reason, DPA "has no records responsive to Mr. McGuire's Kentucky Open Records Request." Although Mr. Hughes later joined the DPA staff in the Morehead Trial Office, the fact remains that when he represented Mr. McGuire, "he did so as private counsel. " However, Ms. Lowe forwarded a copy of Mr. McGuire's January 29 request to Mr. Hughes to give him an opportunity to respond as private counsel. On appeal, Ms. Lowe provided a copy of her March 11, 2019, letter to Mr. McGuire outlining these relevant facts and further clarifying that "DPA typically only maintains the files of clients represented by DPA attorneys. All private counsel are ethically responsible for maintaining private clients' files, including DPA contracted clients." Based upon the following, this office has no basis upon which to conclude that either DPA or Mr. Hughes, acting in his capacity as private counsel for Mr. McGuire, violated the Open Records Act.
The Attorney General has consistently recognized that a public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist in the possession of the agency. See
Bowling v. Lexington-Fayette Urban Cty. Gov't, 172 S.W.3d 333, 341 (Ky. 2005)("before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist"); 11-ORD-091. 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, at KRS 61.8715, the Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). However, in order to satisfy the burden of proof imposed on a public agency per KRS 61.880(2)(c), a public agency must offer a written explanation for the nonexistence of the records. See
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" ); 04-ORD-075; 12-ORD-195. DPA has done this on appeal. Compare 11-ORD-074 (holding that "existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable" and the agency failed to rebut the presumption).
A public agency violates KRS 61.880(1) when it fails to advise the requesting party whether the records being sought exist in the possession of the agency, but discharges its duty under the Open Records Act in affirmatively indicating that certain records do not exist, following a reasonable search, and explaining why, if appropriate. This office has expressly so held on many occasions. 04-ORD-205, p. 4; 12-ORD-056; 16-ORD-112. Because DPA made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested," it complied with the Act, regardless of whether the search yielded any results, in affirmatively indicating that no responsive records existed in the custody or possession of the agency. 05-ORD-109, p. 3; OAG 91-101; 01-ORD-38; 12-ORD-030. Mr. McGuire "has produced no affirmative evidence, beyond mere assertions, that [DPA] possesses such records as [he] has requested," and this office therefore does "not have a sufficient basis on which to dispute the agency's representation that no such records exist." 09-ORD-214, pp. 3-4. Consistent with KRS 61.872(4), DPA forwarded Mr. McGuire's request to Mr. Hughes; nothing else was required. 2 See 15-ORD-136 (holding that agency complied with KRS 61.872(4) but, in the alternative, "might have immediately forwarded [the] request to [the appropriate individual] for timely processing and notified [the requester] , in writing, that his request was forwarded) .
Notwithstanding his current employment with DPA, the undisputed facts of record establish that Mr. Hughes was a private attorney when the court appointed him to represent Mr. McGuire and his client files were thus not public records within the meaning of KRS 61.870(2). Although private attorneys may be obligated under the Rules of Professional Conduct governing attorneys licensed to practice law in Kentucky to provide records from their clients' case files, 3 the Open Records Act does not apply to private attorneys. See 07-ORD-114; 13-ORD-017; 16-ORD-224. In relevant part, KRS 61.870(2) broadly defines "public record" to encompass "all books, papers, maps, photographs, cards, tapes, 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 ." (Emphasis added.) There is no question that a private attorney, such as Mr. Hughes during his representation of Mr. McGuire, is not a "public agency" under KRS 61.870(1)(a); the remaining definitional sections were facially inapplicable to him prior to his employment with DPA. Accordingly, provisions of the Open Records Act did not apply nor was the requested file a "public record. " See 05-ORD-249; 07-ORD-114; 12-ORD-100; 14-ORD-141. Compare 16-ORD-252 (DPA is a "department of state government established pursuant to KRS 31.010," and is therefore a "public agency" as defined at KRS 61.870(1)(b); DPA client files are "public records" under KRS 61.870(2) as the files "are in the possession of DPA through its attorney employees").
In summary, this office cannot resolve a factual dispute concerning the actual delivery and receipt of Mr. McGuire's request and therefore declines to find that DPA violated KRS 61.880(1). Upon receipt of this appeal, DPA conducted a reasonable search for a file relating to Montgomery Circuit Court Indictment No. 12-CR-00172, but did not possess any such file. DPA cannot provide Mr. McGuire with a file that does not exist in the possession of the agency, but discharged its duty in explaining that Mr. Hughes, a private attorney, would possess the file because the court appointed him to represent Mr. McGuire due to a conflict. Mr. Hughes may be required to provide his former client with a copy of the requested file pursuant to SCR 3.130, but was not subject to provisions of the Open Records Act prior to his employment with DPA nor was the requested file a "public record. " Neither DPA nor Mr. Hughes violated the provisions of the Open Records 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.
Andy Beshear
Attorney General
Michelle D. Harrison
Assistant Attorney General
Footnotes
Footnotes
1 The printout states: "Hughes, Steven as Attorney-Private Appointed" with a "Memo" indicating that he served as "Conflict Counsel."
2 KRS 61.872(4) provides, "If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records." This office has recognized that "it is incumbent on the [public agency] to make reasonable efforts to ensure that an employee who receives a misdirected open records request immediately forwards that request to the agency's official custodian for timely processing, or at a minimum notifies the requester and 'furnish[es] the name and location of the custodian of the public record.' KRS 61.872(4)." 03-ORD-032, p. 2 (emphasis added); 12-ORD-153 (following Baker v. Jones, 199 S.W.3d 749, 752 (Ky. App. 2006)).
3 Pursuant to SCR 3.130(1.16)(d):
Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.