Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Metcalfe County Judge/Executive ("Judge/Executive") violated the Open Records Act when he responded to an open records request stating that he had no responsive records. For the reasons stated below, we find that the Judge/Executive did not violate the Act.
On August 13, 2019, Brennan Crain, News Director, WCLU ("Appellant"), requested:
. . . access to and a copy of any correspondence (including voicemails and emails) between Metcalfe County Judge Executive Harold Stilts and any members of the Republican executive committee of Metcalfe County (including Chair Danny Holley) from Dec. 1, 2018; and email correspondence between Metcalfe County Judge Executive Harold Stilts and former Sheriff Ricky Brooks from Dec. l, 2018.
Judge/Executive Harold Stilts responded by letter that same day, August 13, stating:
In response to your request for Open Records, there are no email or voice mail records. I do very little emailing and I do not text. I do not have phone numbers for Danny Holley or any member of the Executive Committee. All my contacts with members of the Executive Committee, as I explained the other day, have been verbal. As for former Sheriff Ricky Brooks, the last time I talked to him was when he came by my office about 4-1/2 months ago. I hope this satisfies your request because it's all I have.
Appellant appealed the response to this office by letter dated August 15, 2019, asserting that "Stilts is on record saying that he had deleted an email on his email account regarding a committee meeting from chairman Danny Holley. Stilts also claims he had no voicemail from Holley who 'notified' him by phone of the committee meeting. "
On appeal, the Judge/Executive responded by letter, September 4, 2019, effectively stating that he found no responsive records upon searching his email and phone log.
Analysis . In 07-ORD-033, a requester asked for a confidentiality agreement, signed by members of the Eastern Kentucky University parking appeals committee, that he presumed to exist, but which the university stated did not exist. Our decision stated:
Not only did the requester fail to cite specific legal authority directing the creation of the confidentiality agreement, he expressed doubt as to its existence. Our research disclosed no requirement that such a record exist. Under these circumstances, we were disinclined to ask the agency to "prove a negative . . . by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives." [Bowling v. Lexington-Fayette Urban Cty. Gov't, 172 S.W.3d 333, 341 (Ky. 2005).]
Although Appellant in this appeal asserts the existence of the records he requested, he has not cited any legal authority directing the creation of those records. Appellant states that the Judge/Executive "is on record saying that he had deleted an email on his email account regarding a [Republican executive committee of Metcalfe County] meeting from Chairman Danny Holley. " However, we have no objective proof that such an email ever existed or that the Judge/Executive deleted the email. Appellant likewise asserts that "Danny Holley notified the Judge/Executive by phone of the committee meeting, " but that bare assertion does not allege that a voicemail was created, but merely that the Judge/Executive may have received notification by phone of the Committee meeting.
"Obviously, a public agency cannot afford a requester access to records which do not exist." 99-ORD-98. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 99-0RD-150. Moreover, an agency is not required to "prove a negative" when explaining that it does not have a record or that it does not exist. 09-ORD-194; compare , 16-ORD-101 (existence of a statute directing the creation of the requested record creates a presumption of the record's existence). In the absence of legal authority requiring the creation of the requested record, or objective facts indicating the record was created, we see no need to require further explanation of the nonexistence of the requested record. See 11-ORD-091. Accordingly, we find no violation 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.