Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Harrods Creek Fire Protection District ("Harrods Creek") violated the Open Records Act in denying Alex Martin's request for records regarding its merger into a larger fire protection district with three other fire protection districts. For the reasons stated below, we find that Harrods Creek committed a procedural violation in delaying its response to the request by one day beyond the three-day limit prescribed by the Act. Five of six requests became moot on appeal when successor agency provided records to requester. Harrods Creek did not violate the Act by declining to provide tax records that were either nonexistent or not in its possession.
In the spring of 2019, four fire protection districts within Louisville, Kentucky, began the process of merging into one larger fire protection district. The merger involved Harrods Creek Fire Protection District, Worthington Fire Protection District, Eastwood Fire Protection District, and Anchorage Middletown Fire and EMS. On July 1, 2019, Greg Fischer, mayor of Louisville/Jefferson County Metro Government, signed an Executive Order that finalized the merger in accordance with KRS 75.020(4). The new fire protection district is known as the Anchorage Middletown Fire and EMS ("AMFEMS").
By letter dated April 29, 2019, J. Alex Martin ("Appellant") submitted an open records request to Harrods Creek. Harrods Creek received the request on April 30 and sent a response on May 6. Appellant's request included twenty (20) separate requests, but on appeal he contested only six (6) of the responses from Harrods Creek. By letter dated July 30, Appellant appealed the responses to the following requests:
Request No. 1. The merger agreement between the Harrods Creek Fire District and the Middletown Anchorage Fire District;
Request No. 3. All documents, emails, PowerPoint presentations, coverage and staffing estimates and planning documents for the merged organization;
Request No. 4. All emails between Harrods Creek Fire District and Middletown, Worthington, Eastwood Fire Districts related to the merger;
Request No. 6. All documents related to pre- and post-staffing estimates;
Request No. 12. Any documents related to estimates for establishing current and future taxation purposes;
Request No. 15. Any documents and emails related to the deployment or planned deployment of EMS equipment within the merged district.
Harrods Creek responded to Request # 1, stating: "The only records that the District has identified as being potentially responsive to this request are preliminary drafts and therefore exempt from disclosure pursuant to [KRS] Section 61.878(1)(i) of the Act." Similarly, in response to Request Nos. 3, 4, 6 and 15, Harrods Creek stated:
The only records that the District has identified as being potentially responsive to this request are preliminary drafts, notes, and correspondence that are exempt from disclosure pursuant to [KRS] Section 61.878(1)(i) of the Act and/or preliminary recom-mendations and memoranda that are exempt from disclosure pursuant to [KRS] Section 61.878(1)(j) of the Act.
In response to Request No. 12, Harrods Creek stated that it had "not identified any records that would be responsive to this request."
On appeal, K. Kelly White Bryant, attorney with Stites & Harbison PLLC, answered on behalf of AMFEMS. She explained that, on April 17, 2019, the separate fire districts approved resolutions pertaining to the proposed merger. "Those resolutions also authorized certain representatives of each of the Fire Districts to take actions on behalf of their respective districts in connection with the Merger. " She further explained:
On May 8, 2019, the Fire Districts filed a Joint Merger Petition (the "Joint Petition") with the Jefferson County Clerk's Office in accordance with Section 75.020(4) of the Kentucky Revised Statutes (the "KRS"). On May 10, 2019, public notice related to the filing of the Joint Petition and the proposed Merger was made in the Courier-Journal as required by KRS 75.020(4)(b) and KRS 424. The public notice advised of the opportunity to contest the merger by having 51% or more of the property owners in the proposed merged district submit a written petition to the Jefferson County Clerk regarding their objection to the merger of the districts. No such petition was filed, and the Jefferson County Clerk's Office notified the Mayor that "no written objection or remonstrance has been made to the Petition." On May 30, 2019, the Mayor of Louisville/Jefferson County Metro Government, Greg Fischer, entered an Executive Order approving the Merger effective July 1, 2019.
Initial Response Was Untimely . Harrods Creek received the request for records on April 30 and sent its response on May 6. This response was one (1) day beyond the three-day period allowed for public agencies to respond pursuant to KRS 61.880(1).
Requests 1, 3, 4, 6, and 15 Are Moot . AMFEMS stated that it received a new open records request from Appellant on July 22, 2019. AMFEMS initially responded to the request on July 25, and more fully on August 2, 2019. 1 On appeal, AMFEMS provided the August 2 response, consisting of approximately 250 pages, to this office. In its response to the appeal of the April 29 request, AMFEMS asserts that, regarding Request No. 1, the request became moot when it sent records to Appellant on August 2 that were responsive to that request.
Our review of the merger agreement, provided by AMFEMS to Appellant by correspondence dated August 2, indicates that it is the merger agreement at issue in Request No. 1. The date of the merger agreement is May 6, 2019. 40 KAR 1:030, Section 6 states: "If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." As this office has noted, "Pursuant to 40 KAR 1:030 Section 6, a records access dispute is mooted after the requester initiates an open records appeal only if the requested documents are made available to him." 11-ORD-189, p. 3. As such, we concur with AMFEMS that Request No. 1 is moot and we decline to issue a decision regarding the appeal of that request.
On appeal, AMFEMS grouped its response to Request Nos. 3, 6, and 15 together because these three requests related to staffing and to deployment of equipment. AMFEMS asserts that these requests are also moot as it provided all responsive documents to Appellant as part of its August 2 response (to the July 22 request), and its August 21 response to this appeal. AMFEMS states that it provided "current staffing model and current organizational structure, which are both subject to change." AMFEMS also provided:
. . . a schedule of information related to the current deployment of EMS equipment by the merged district, which is attached as Appendix 4 and incorporated by reference and identifies the locations at which Advanced Life Support ambulances and Advanced Life Support fire companies are stationed throughout the merged district. These documents and this information either did not exist or were not final (as the case may be) at the time of HCFPD's response to Mr. Martin's April 29 request . . .
In response to Request No. 4, AMFEMS provided numerous emails on August 21 and stated that these emails, along with records provided in its August 2 response, are all records responsive to the request and that the appeal of this request is moot.
Our review of the records provided on appeal indicate that AMFEMS has provided records responsive to Requests 3, 4, 6, and 15. As with Request No. 1, and given the voluminous and detailed responses by AMFEMS, the appeal of these requests is now moot and we therefore decline to issue a decision regarding those requests.
Request # 12 . In response to the request for "Any documents related to estimates for establishing current and future taxation purposes[,]" Harrods Creek responded that it had "not identified any records that would be responsive to this request." Appellant asserts on appeal that "[t]his information was disclosed at a non-public meeting that was held for the small city officials at the Worthington Fire Department and therefore was known and available."
On appeal, AMFEMS reaffirmed Harrods Creek's initial response that it did not have any responsive records in its possession and speculated that Appellant, at a meeting regarding the proposed merger, may have heard some information about "current and future taxation purposes." Given the voluminous and detailed responses provided to Appellant, we have no reason to doubt the initial response from Harrods Creek or the final response on appeal from AMFEMS.
"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 facts indicating the creation of the requested record, 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 as to Harrods Creek's response to Request No. 12.
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 Appellant did not appeal the agency's responses to his July 22 request, and we therefore do not have statutory authority to decide whether the agency's responses to that request violated the Open Records Act. Many of the records provided in response to the July 22 request are responsive to the April 29 requests and are relevant to whether those requests are now moot.