Opinion
Opinion By: Andy Beshear, Attorney General; Andy Beshear, Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Governor ("Governor's Office") violated the Open Records Act ("Act") in its disposition of an open records request from Courier-Journal reporter Alfred Miller ("Appellant"). For the reasons stated below, we find that the Governor's Office violated KRS 61.880(1) by failing to issue a timely denial of Appellant's request and by failing to properly invoke KRS 61.872(5) and provide the statutorily required adequate explanation of the cause for delay. The Governor's Office failed to fulfill its duties under the Act by providing a nonresponsive record. The Governor's Office subverted the intent of the Act within the meaning of KRS 61.880(4) 1by creating unnecessary impediments to effective inspection of public records.
On June 25, 2019, Appellant emailed an open records request seeking electronic copies of the following:
"[A]ll correspondence, including but not limited to emails and text messages, sent and received by [Governor Matt Bevin ("Governor Bevin")], Secretary of the Executive Cabinet Scott Brinkman and Chief of Staff Blake Brickman, between May 1, 2019, and present, that contain the terms 'AT&T,' 'Chuck,' 'Courier-Journal,' 'Grindle,' 'Hal Rogers,' 'Jim Host,' 'Karen Kelly,' 'KCNA,' 'KentuckyWired,' 'Kentucky Wired,' 'Macquarie' or 'ProPublica.'"
On June 26, 2019, Deputy General Counsel Matthew F. Kuhn responded on behalf of the Governor's Office by delaying responding to the request, citing a "considerable backlog of open records requests at present." The Governor's Office also argued that Appellant's request was an "open-ended-any-and-all-records-that-relate type of request." The Governor's Office did not deny the request, but asked that Appellant narrow his request. On July 4, 2019, Appellant agreed to narrow his request, stating, "I'm happy to limit this to email correspondence...[a]nd...,perhaps we can limit the search terms to 'AT&T,' 'Grindle,' 'KCNA,' 'KentuckyWired,' 'Kentucky Wired,' or 'Macquarie.'" Nevertheless, on July 9, 2019, the Governor's Office continued to delay stating, "[g]iven travel schedules, the scope of your request, the need to review records, and the fact that the records are in active inboxes, I'll get you a final answer by next Tuesday, the 16th."
On July 16, 2019, the Governor's Office provided some responsive records, but failed to provide records pertaining to Governor Bevin. Appellant emailed the Governor's Office to follow-up. On July 17, 2019, the Governor's Office replied, "I overlooked that aspect of your request. I've asked that the search be run." On July 23, 2019, Appellant sent a second follow-up email. After 28 days, the Governor's Office denied the request as it pertains to Governor Bevin. The denial stated: "[o]ur search of Governor Bevin's e-mail inbox produced one document, which we are withholding because it is 'correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency.' KRS 61.878(1)(i)." The Governor's Office failed to state affirmatively that no additional responsive records exist in their custody.
On August 6, 2019, Appellant appealed the disposition of his request, but only as it pertained to the denial of Governor Bevin's email. On August 22, 2019, the Governor's Office respond to the appeal by stating: "[Appellant] has appealed our decision to withhold a document in response to his request...seeking communications related to the KentuckyWired project. We located one responsive email from Governor Bevin's inbox, which we withheld because it is exempt as 'correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency.'" The Governor's Office also argued the email was exempt under KRS 61.878(1)(i).
On August 26, 2019, this office requested a copy of the withheld records for in camera review, pursuant to KRS 61.880(2)(c) 2and 40 KAR 1:030, Section 3, to substantiate the Governor's Office's reliance on KRS 61.878(1)(i) as an exemption. On Monday, September 23, 2019, this office reviewed Governor Bevin's email in camera . We are not at liberty to disclose the contents of responsive records reviewed in camera . However, the email was from a private individual and related to a subject matter unrelated to Appellant's request. Therefore, the email was a nonresponsive record.
The Governor's Office Violated KRS 61.880(1), KRS 61.872(5) and Failed to Adequately Explain the Cause for Delay . The Governor's Office issued a timely written response to Appellant's request, but otherwise violated KRS 61.880(1) by failing to provide either timely access to all existing responsive records or a timely denial citing the applicable statutory exception and explain how it applied to the responsive record being withheld. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." A public agency cannot generally postpone this deadline. 04-ORD-144, p. 6. The Act "contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply." 01-ORD-140, pp. 3-4; 16-ORD-206. The Governor's Office did not inform Appellant that it was denying his request relating to Governor Bevin's email for 28 days, and therefore violated KRS 61.880(1).
The Governor's Office also failed to properly invoke KRS 61.872(5), the statutorily recognized exception to KRS 61.880(1). KRS 61.872(5) provides that if public records are "in active use, in storage or not otherwise available," the official custodian of the public agency "shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection." Due to the mandatory nature of KRS 61.880(1), a public agency must expressly invoke KRS 61.872(5) when it delays access to public records. See 15-ORD-174, p. 6; 18-ORD-188. The Governor's Office violated the Act by failing to expressly invoke KRS 61.872(5) in either its initial responses or on appeal.
The Governor's Office failed to meet its burden of proof and justify the delayed response. The Act normally requires the agency to notify the requester and designate an inspection date not to exceed three days from the agency receipt of the request. See OAG 92-117. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, a determination of what is a "reasonable time for inspection turn on the particular facts presented." 01-ORD-140, p. 4, citing OAG 92-117, p. 4. In all instances other than those under KRS 61.872(5), "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 82-300, p. 3.
The Governor's Office did not provide evidence to support the delay in responding to the request relating to Governor Bevin's email. The Governor's Office did not assert that the email was "in active use, in storage or not otherwise available" per KRS 61.872(5), and failed to specify which of these permissible reasons for delay applied or to what extent. The Governor's Office claimed that Appellant's request was a broadly framed "fishing expedition," but did not support the assertion with facts, such as the number of records implicated, locations involved, or specific difficulties in retrieving records. "Whether any delay beyond the statutory deadline was warranted turned on the adequacy of the [agency's] explanation." 14-ORD-226, p. 4; 16-ORD-153. While a reasonable extension of time may have been justified, the record on appeal is devoid of any facts by which to determine whether the 28-day delay was reasonable under the circumstances. In the absence of a legitimate detailed explanation of the cause for delaying the denial of this request for 28 days, we find that the Governor's Office failed to provide Appellant "timely access" in violation of the Act. See 13-ORD-052, pp. 6-7; 15-ORD-141; 16-ORD-206.
The Governor's Office Failed to Fulfill Its Duties by Producing a Nonresponsive Record . The Governor's Office denied Appellant's access to an email, pursuant to KRS 61.878(1)(i). However, our confidential review of the email shows that the record is nonresponsive. As such, the Governor's Office has not produced any records responsive to Appellant's request relating to Governor Bevin's email, and has not affirmatively denied that additional responsive records may reside in its custody. As such, we find that the Governor's Office has failed to fulfill all of its duties under the Act.
The Governor's Office failed to prove that it conducted an adequate search for a responsive email. A public agency is not required to "prove a negative" in order to refute a claim that certain records exist in the absence of a prima facie showing by the complainant. See
Bowling v. Lexington-Fayette Urban Cty. Gov't , 172 S.W.3d 333, 341 (Ky. 2005). However, in responding to an open records request, a public agency must "expend reasonable efforts to identify and locate the requested records." 95-ORD-96. This entails making "a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Id. (quoting
Cerveny v. Central Intelligence Agency , 445 F.Supp. 772, 775 (D. Col. 1978)). Accordingly, the agency "must ensure that its initial search ... satisfies [this] standard for an adequate search and that it can reasonably be expected to capture all responsive records." 16-ORD-110 (emphasis in original).
A public agency violates KRS 61.880(1) when it fails to advise the requesting party whether the records being sought exist in its possession, but discharges its duty 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. While Appellant has not made a prima facie case that responsive records exist in the possession of the Governor's Office, the Governor's Office failed to state such affirmatively. See 99-ORD-150 (finding that the agency discharges its duty under the Act by affirmatively stating it does not have a responsive record, or that such a record does not exist.) The burden of proof in an open records appeal is imposed on the public agency, pursuant to KRS 61.880(2)(c). Accordingly, the Governor's Office has not fully discharged its duties under the Act.
The Governor's Office failed to provide Appellant an explanation for the nonexistence of responsive emails. The search conducted by the Governor's Office apparently yielded only one nonresponsive record, and a public agency cannot afford a requester access to a record that it does not have or that does not exist. See 99-ORD-98. However, in addressing the obligations of a public agency when denying access to public records based upon their nonexistence, we have observed that a public agency's "inability to produce records due to their apparent nonexistence is tantamount to a denial[.]" 01-ORD-38, p. 9; 12-ORD-162. In keeping with its burden of proof, a public agency must offer some explanation for the nonexistence of the records. See
Eplion v. Burchett , 354 S.W.3d 598, 604 (Ky. App. 2011).
Locating, but withholding, only a single nonresponsive email in response to Appellant's request was tantamount to a denial based on the nonexistence of responsive records. Further, the Governor's Office failed to state affirmatively that no additional responsive records exist in its possession. Therefore, in keeping with its burden of proof, the Governor's Office must provide Appellant a written explanation for the nonexistence of responsive records that establishes that the Governor's Office conducted a search for responsive records that met the good faith standards stated in 95-ORD-96. No evidence exists in the record that the Governor's Office conducted a good faith search that fulfilled that duty under the Act. Accordingly, the Governor's Office did not fulfill its duties under the Act.
The Governor's Office Subverted the Intent of the Act . The Governor's Office subverted the intent of the Act within the meaning of KRS 61.880(4) by creating unnecessary impediments to Appellant's effective inspection of public records. The facts of this appeal establish intent on the part of the Governor's Office to impede Appellant in his effort to inspect records responsive to his request. In prior decisions, where this Office has found that an agency has commingled nonresponsive records with responsive records in a manner that precluded meaningful review of the responsive records, we have found that the agency subverted the intent of the Act by creating an unnecessary impediment to effective inspection. 17-ORD-272; 08-ORD-032; 07-ORD-150. The Governor's Office located but withheld only one single nonresponsive email, and therefore did not commingle the nonresponsive record with responsive records. However, the record shows that the Governor's Office created unnecessary impediments to Appellant's effort to inspect Governor Bevin's emails -- the 28-day delay without explanation, the argument the request was a "fishing expedition," and influencing Appellant to revise his request. However, no evidence exists in the record that Appellant's request contributed to the delay in producing responsive records. Having located but withheld a nonresponsive record, the Governor's Office further impeded Appellant by failing to affirmatively state that no additional responsive records exist, and failing to show that it conducted a good faith search for responsive records. As such, we find that the Governor's Office subverted the intent of the Act within the meaning of KRS 61.880(4).
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 KRS 61.880(4) states: "If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied."
2 KRS 61.880(2)(c) states: "On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed."