Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Summary : This office has no basis upon which to find the Lyon County Attorney's Office violated the Open Records Act in failing to issue a timely written response per KRS 61.880(1), because the office cannot resolve a factual dispute concerning the actual delivery and receipt of the request for records. Lyon County Attorney's Office discharged its duty under the Act in conducting a reasonable search for the requested records and explained their nonexistence.
Open Records Decision
The question presented in this appeal is whether the Lyon County Attorney's Office ("County Attorney") violated the Open Records Act ("Act") in failing to issue a written response to Uriah Pasha's ("Appellant's") July 9, 2019 request within three business days, as required by KRS 61.880(1). Due to a factual dispute concerning the actual delivery and receipt of Appellant's request for records, this office has no basis upon which to find that the County Attorney violated the Act. However, the County Attorney's Office discharged its duty under the Act in conducting a reasonable search for the requested records and explaining their nonexistence.
On July 18, 2019, Appellant submitted an open records appeal to this office, arguing that the County Attorney's Office had not responded to his July 9 request seeking a copy of a "letter and its attachments to Lee Wilson, Lyon County Attorney dated July 5, 2019, Re: RCr 2.20 Criminal Complaints; and Lee Wilson's response thereto." Appellant did not attach any evidence that the Lyon County Attorney's Office had received a copy of his open records request.
On July 26, 2019, Lyon County Attorney Lee F. Wilson contacted this office to state that our notification included a copy of Appellant's request for records, but did not include a copy of the appeal. Nevertheless, Mr. Wilson described a search for responsive records conducted by the County Attorney's Office, but he argued that a responsive record was not located. Mr. Wilson stated that his office located December 17, 2018 and July 9, 2019 letters from Appellant. However, Mr. Wilson argued that neither of those letters was an open records request. He also argued that neither letter matched the description of responsive records provided in Appellant's July 9, 2019 request.
On July 29, 2019, our office provided the County Attorney's Office a copy of the appeal. On August 2, 2019, Mr. Wilson responded stating that his office reviewed the appeal and conducted another search of, "records pertaining to the request in the Lyon County Attorney's Office." Mr. Wilson stated that the December 17, 2018 and July 9, 2019 letters were the only letters from Appellant in the possession of the County Attorney's Office. However, the County Attorney's Office could not locate records responsive to Appellant's July 9, 2019 request.
This office cannot conclude that the County Attorney's Office violated the Act by failing to issue a timely written response to Appellant's request for records. Pursuant to KRS 61.880(1), a public agency has three business days, excluding weekends and legal holidays, to respond to an open records request. This office has consistently acknowledged the inability to conclusively resolve a factual dispute concerning the actual delivery and receipt of an open records request. See OAG 89-81; 03-ORD-172; 14-ORD-199; 18-ORD-056. More specifically, "this office is not equipped to resolve factual dispute [s] [when presented with conflicting factual narratives]." 96-ORD-70, p. 3; 14-ORD-132. As in the those decisions, the conflicting record on appeal here does not contain sufficient evidence concerning the actual delivery and receipt of Appellant's July 9, 2019, request for this office to conclusively resolve the related factual dispute. As such, we find no violation of KRS 61.880(1).
Nevertheless, upon notification of Appellant's request for records and receipt of this appeal, the County Attorney's Office conducted multiple searches of its records to locate a responsive record, but located no such record. In the responses to this appeal, the County Attorney described searches for responsive records, and he confirmed that no responsive record exists. 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). 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.
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. ") 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. 04-ORD-205, p. 4; 12-ORD-056; 16-ORD-112. Because the County Attorney 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. Appellant "has produced no affirmative evidence, beyond mere assertions, that [the County Attorney's Office] 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. Accordingly, we find no violation of 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.