Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Metro Government ("LMG") violated the Kentucky Open Records Act in its disposition of two open records requests submitted by Ann Ramser, dated February 11, 2019, and March 7, 2019. For the reasons that follow, we find that LMG did not violate the Act insofar as it was not required to create a record, to produce a nonexistent record, or to honor a request for information; but substantively violated the Act as to the first request and procedurally violated the Act as to the second request.
Ms. Ramser's first request, submitted electronically after business hours on February 11, 2019, was for "evidence of all violations or complaints alleged against the owner, operator or employee of the property located at 6908 southside drive [ sic ] and the outcome of the alleged violation or complaint." On the electronic form, she described the type of records as "Complaint/Code Violations Records" and indicated that she believed the records were held by "Codes and Regulations." Having received the request on February 12, 2019, LMG timely responded by e-mail on February 15, 2019, stating that a search of the address had "produced NO open or closed Property Maintenance Cases." Ms. Ramser replied, "What about complaints or violations related to alcohol [?]" In response, LMG stated that she "would need to submit a new request that specifically related to complaints/violations about alcohol. "
In her second request, submitted electronically after business hours on March 7, 2019, Ms. Ramser asked for (1) "[a]ll written interpretations ? being utilized by Metro Public Works" of certain language in an administrative regulation; (2) an organizational chart of Metro Public Works; (3) certain information about traffic accidents on Kenwood Drive; 1 and (4) "a copy of Metro Public Works Policy regarding responses to questions and concerns from Metro Louisville residents." On the electronic form, she described the type of records as "Other" and indicated that she believed the records were held by "Public Works/All Other Areas."
LMG responded to the second request on March 19, 2019. In response to item 1, LMG stated that there were no responsive records. In response to item 2, LMG provided an organizational chart; that portion of its response is therefore not at issue. In response to item 3, LMG stated: "Public Work [ sic ] does not maintain a list of accidents at a particular location. You may want to request such information from the Louisville Metro Police Department ? or Kentucky State Police ...." LMG provided hyperlinks to Metro Police's open records request form and the Kentucky State Police's open records page. Finally, in response to item 4, LMG stated: "There is no responsive record[,] but please see the attached Open Records Policy for all of Metro Government." Ms. Ramser brings this appeal with respect to both of her requests.
On appeal, Ms. Ramser argues, as to the first request, that she was seeking complaints and allegations against persons, not against the property. In response, LMG asserts that Ms. Ramser never identified the "owner, operator, or employee" of the property in question, and contends, "With only an address provided by Ms. Ramser in her request, Louisville Metro could only conduct a search for records relating to any violations by that property."
In subsequent correspondence dated April 6, 2019, Ms. Ramser pointed out that she was able to find the ABC licenses easily by property address on LMG's website, and those licenses in turn would identify the owner or operator of the business at that address. In a reply to that letter on April 10, 2019, LMG did not deny that it could have conducted a follow-up search for ABC complaints and violations after being told that Ms. Ramser was seeking them, but merely stated that her original request "was very vague and general" and "[w]ithout knowing Ms. Ramser specifically wanted ABC complaints and violations, Louisville Metro did not know to search those records."
In 15-ORD-099, the University of Louisville had initially interpreted an open records request as seeking a list of invitees to a reception. Although the requester subsequently clarified that he wanted a list of persons who actually attended the reception, the university merely conducted a search for a list of the persons invited. We found that the university violated KRS 61.880(1) by failing to search for the records identified in the clarified request. In this case, LMG similarly ignored Ms. Ramser's clarification and failed to search for responsive records or to provide a response to her clarified request. Thus, we find that LMG substantively violated the Open Records Act as to the first request.
With regard to the second request, LMG admits that its response was untimely. KRS 61.880(1) requires a public agency to respond to an open records request within three business days, excluding weekends and legal holidays. Therefore, LMG committed a procedural violation of the Act by failing to respond within the statutory time period.
Ms. Ramser argues that if LMG possessed no written interpretation of the administrative regulation, as she requested in item 1, LMG should have "identif[ied] by name and title, the person who interpreted the administrative regulation a certain way." LMG correctly points out that this constitutes a request for information, not for public records. The Open Records Act does not require an agency to honor a mere request for information. See 16-ORD-068. Thus, we find no substantive violation of the Act as to items 1 and 4 of the second request, for which no responsive records existed. A public agency cannot provide records it does not have or which do not exist, and it discharges its duty under the Act by affirmatively so stating. 99-ORD-98; 99-ORD-150.
Concerning item 3 of the second request, Ms. Ramser disputes the claimed nonexistence of a list of accidents on Kenwood Drive. Based on an e-mail from LMG Public Works engineer Jeffrey E. Brown, Ms. Ramser argues "that Public Works was aware of accidents on Kenwood Drive" and therefore must have a list. Specifically, in an e-mail to Ms. Ramser dated March 1, 2019, Mr. Brown stated, "Reviewing the accident history, there have been 2 correctable accidents per year over the last 5 years...." LMG, however, states that Mr. Brown merely "reviewed collision reports from the Kentucky State Police website without generating any such report or saving such results." A public agency is not required to "create a record to satisfy an open records request." 12-ORD-026. Since it appears that LMG does not possess such a list, we find no substantive violation of the Open Records Act as to item 3.
LMG admits, however, to a procedural violation in regard to item 3, inasmuch as it provided only web addresses for Louisville Metro Police and the Kentucky State Police. See KRS 61.872(4) ("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" ). LMG has attempted to mitigate this violation by providing the respective addresses for the agencies' open records offices in its response to this appeal. Accordingly, we conclude that LMG substantively violated the Open Records Act in regard to the request dated February 11, 2019, by failing to conduct a search or issue a response after clarification of the request; and committed procedural violations of the Act as to the request dated March 7, 2019.
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 proceedings.
Footnotes
Footnotes
1 Her request was as follows: "Identify by date and location, all accidents on East and West Kenwood Drive starting 1/1/14 and ending 3/7/19. Include information indicating whether a semi-truck was involved and if the semi-truck was hauling a trailer, the size of the trailer(s) and the weight of the load in the trailer."