Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Graves County Board of Education ("Board") violated the Open Records Act in responding to a request for records regarding the hiring of outside law firms in years past. For the reasons stated below, we find that the Board violated the Act in failing to clearly state that such records do not exist. The Board corrected those violations on appeal but a violation continues to exist where the Board implied, but did not affirmatively and clearly indicate, the nonexistence of documentation of a specific check paid to a law firm.
On March 7, 2019, Appellant filed an open records request with the Board asking for financial records and records relating to the hiring of two law firms by the Board. Appellant's first request was for the "check number and date of the check" for payment of "English, Lucas, Priest & Owsley of Bowling Green for legal services in closing Cuba Elementary." He also requested "a copy of supporting documentation for this payment (invoice, receipts, etc.)." Appellant then made thirteen (13) other requests for records that justified or somehow authorized the actions of the Board in hiring and paying the law firms of English Lucas Priest & Owsley, LLP, and McBrayer, McGinnis, Leslie & Kirkland, PLLC. 1 Appellant cited to newspaper articles from 2013 and 2014 regarding the actions he states the Board as having taken. Finally, Appellant requested to "review [the Board's] Accounts payable box for September 2015 (FY-2016)."
Jimmilyn Hancock, Finance Director, Graves County Schools, responded to Appellant's requests on March 8, 2019. With regard to Appellant's first request regarding documentation for a check paid to the law firm of English Lucas Priest & Owsley, LLP, she stated that the check number is "64301, dated 4/19/13. The record retention time-line requirements for this check have expired. " In response to each of the next 13 requests for records that authorized certain actions of the Board, Ms. Hancock responded: "No records available due to open records request guidelines. " As to Appellant's request to "review [the Board's] Accounts payable box for September 2015 (FY-2016)," the Board advised that those records are open for public inspection during its regular business hours of 8:00 a.m. to 4:00 p.m., Monday through Friday.
Appellant appealed the Board's response to this office by letter dated March 15, 2019. The Board responded to the appeal by stating that it "did not vote on hiring of legal counsel; therefore, no records exist." Analysis . As the Attorney General has consistently recognized, 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. Rather, the right to inspect attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. However, in addressing the obligations of a public agency when denying access to public records for this reason, the Attorney General has 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). 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 (emphasis added); 09-ORD-145. In short, "[i]f a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4; 14-ORD-225.
As to Appellant's first request regarding the check for payment of the law firm of English Lucas Priest & Owsley, LLP, the Board stated that the check number is "64301, dated 4/19/13. The record retention time-line requirements for this check have expired. " The Board's response to the request for a copy of the "documentation for this payment (invoice, receipts, etc.)" may imply, but does not clearly and directly state, that the documentation does not exist. The Board thus violated the Act. The Board did not further address this issue on appeal.
In each response to requests two through 14, the Board merely stated, "No records available due to open records request guidelines. " Just as in its response to the first request for documentation supporting check number 64301, the Board implied the nonexistence of the records requested by Appellant, but failed to directly and clearly state that the records did not exist. Each of these responses constituted a violation of the Act. It was only upon appeal that the Board corrected these violations when it clarified that "[t]he Board did not vote on hiring of legal counsel; therefore, no records exist."
We find no error in the Board's response to the request for a review of the "Accounts payable box for September 2015 (FY-2016)," wherein it directed Appellant to review the records at the Graves County Board of Education during business hours. Appellant did not specifically appeal this response; we also find that KRS 61.872(3) addresses this issue. 2 In 15-ORD-195, this office interpreted KRS 61.872(3) so as to allow an agency to require a requester to inspect the records at the agency's location when the requester either lived or worked in the county where the agency is located, as is the case in this appeal.
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 We have chosen not to include the text of those requests in this decision due to their narrative format, length, and idiosyncratic, and possibly rhetorical, nature. As the Board did not argue that the requests of March 7 were unclear, we shall not address that potential argument.
2 KRS 61.872(3) states that a person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.