Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Paducah ("City") violated the Open Records Act in the disposition of Matthew Roberts' September 16, 2019, request for a copy of all government-issued e-mails, cell phone records (call logs) , and faxes from August 1, 2018, through December 21, 2018, for City employees Mark Thompson, Les Evans, Martin Russell, and Molly Johnson. By letter directed to Mr. Roberts on September 25, 2019, City Clerk Lindsay Parish acknowledged receipt of his request on September 20, 2019. Parish noted that his request "encompasses a voluminous amount of records" and stated that it would take "several days to compile the records" for the following reasons: "1) A specific procedure to pull the e-mails and faxes is required. This process can only be done by an IT professional with the appropriate knowledge of and access to our system[;] 2) Each e-mail and/or fax will have to be printed[;] 3) Each e-mail and/or fax will have to be reviewed by the City Clerk's office to ensure that release does not violate any exception as outlined in KRS 61.878[;] 4) Any e-mails or faxes that are, upon review, found to be not suitable for release in their current form will have to be manually redacted by Clerk's Office Staff. "
Parish further stated that "gathering and redacting the e-mails" would require "many hours," which "creates a serious disruption to our daily workload." She also noted that Mr. Roberts had verbally indicated that he was unwilling to narrow the scope of his request. 1 With regard to "cell phone records (call logs) ," Parish stated, "The City does not have access to employee cell calls as each employee has their own individual cell phone plan." Nevertheless, Parish confirmed with each of three of the named employees "they likewise do not have [responsive] cell phone call logs [.]" 2 Parish maintained the City could not provide something that did exist. Lastly, she indicated that Mr. Roberts could retrieve all existing responsive documents at her office on Wednesday, October 2, 2019, at 3:30 p.m.
By letter dated October 2, 2019, Parish supplemented her original response on behalf of the City. She indicated to Mr. Roberts that the "amount of records the request encompasses and the amount of staff hours required to complete the request is far greater than originally anticipated." As of that date, staff had spent "over 24 staff hours on this request" and she estimated they were "only about [half] of the way through gathering and reviewing the records. Additional time is also required for redaction in accordance with KRS 61.878." Based upon the number of responsive pages, the City further estimated that Mr. Roberts' total cost for copies at $ 0.10 per page would be approximately $ 550.00 -$ 650.00. She indicated that she had unsuccessfully attempted to contact him by telephone on several occasions to confirm that he wanted the City to proceed. Accordingly, she asked Mr. Roberts to call her office to confirm that he wished to proceed; if so, her office would make the records available to him at 3:30 p.m. on October 23, 2019. 3
On appeal, Mr. Roberts focused largely on issues that are not justiciable in this forum. 4 Upon receiving notification of Mr. Roberts' appeal, Ms. Blankenship responded on the City's behalf. She correctly asserted that none of these issues is germane to his appeal. Our scope of review in resolving the current dispute is defined at KRS 61.880(2), pursuant to which the Attorney General "shall review the request and denial and issue . . . a written decision stating whether the agency violated provisions of [the Open Records Act] ." See 09-ORD-186; 12-ORD-065; 18-ORD-221. Further, this office has consistently recognized that "it is not, in general, within our statutory charge to resolve questions of fact or to otherwise act as a trier of fact." 09-ORD-120, p. 4; 18-ORD-221.
In summary, Mr. Roberts' broader issues and peripheral concerns are not justiciable in this forum; the Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17; 14-ORD-023. "Our decisions in disputes arising under the Open Records Act are generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record (s), and, if so, whether the record(s) is open to public inspection." 17-ORD-223, p. 5.
Ms. Blankenship also noted on appeal that Parish had previously informed Mr. Roberts, in response to his August 2019 request, that the City "does not have cell phone call logs for those four employees because they use their own private cell phones. " 5 Notwithstanding that fact, Parish informed Mr. Roberts that she had asked each of the named employees whether they had "cell phone call logs for the relevant time frame in their possession but was informed by each that they" did not possess any such logs. 6 Based upon the following, this office finds the City violated the Act in failing to either comply with all requirements of KRS 61.880(1), or properly invoke KRS 61.872(5), if appropriate. The City also subverted the intent of the Act under KRS 61.880(4) in failing to provide timely access to any records it ultimately provided. However, the City did not violate the Act in denying access to nonexistent records.
With regard to application of KRS 61.880(1) and 61.872(5), the analysis found at pages 2-4 of 19-ORD-121 (In re: Matthew Roberts/City of Paducah, June 20, 2019), a copy of which both parties already have, is controlling. Here, as before, the City's initial response "was timely under KRS 61.880(1) but otherwise deficient as the City failed to either provide Mr. Roberts with access to all existing responsive documents within that period of time or cite the applicable statutory exception(s) and explain how it applied to any records being withheld. " 19-ORD-121, p. 3. "The City failed, in the alternative, to properly invoke KRS 61.872(5), the statutorily recognized exception to KRS 61.880(1), by citing that provision and providing not only a specific date by which documents would be made available, but also a detailed explanation of the cause for delay in producing any existing responsive documents." Id. See 12-ORD-151; 13-ORD-035; 16-ORD-153; 17-ORD-192. Absent from both of the City's initial responses was any reference to KRS 61.872(5); the City did not invoke KRS 61.872(5) on appeal. See 19-ORD-054. "Whether any delay beyond the statutory deadline was warranted turned on the adequacy of the [agency's] explanation." 14-ORD-226, p. 4; 17-ORD-192; 19-ORD-121. The reasons listed in the City's initial response amounted to a summary of the "process that is required upon receipt of any request." 17-ORD-192, p. 3. However, "[t]he need to review and redact records pursuant to KRS 61.878(4) is an ordinary part of fulfilling an open records request. It does not, in and of itself, constitute a reason for additional delay." 15-ORD-029, p. 3; 17-ORD-192; 19-ORD-054. "While a reasonable extension of time may have been justified, the record on appeal is devoid of sufficiently detailed facts upon which to base such a finding or justify" the delay of more than a month (September 20 until October 23). 19-ORD-054, p. 6; 19-ORD-121. See 10-ORD-138. "In the absence of a legitimate detailed explanation of the cause for delaying access," Mr. Roberts has "not receive[d] 'timely access' to the records eventually provided." 13-ORD-052, pp. 6-7; 15-ORD-141.; 16-ORD-206.
Pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action shall rest with the agency[.]" KRS 61.880(1) requires that a "response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " The "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less [amount] to substantial compliance."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996);
City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851 (Ky. 2013); 04-ORD-208; 16-ORD-064. In extending its original deadline, by supplemental response dated October 2, the City stated that it needed "additional time" to perform the unspecified redactions "in accordance with KRS 61.878." See 19-ORD-054 (only information that agency provided was that "much more time" was necessary because agency was processing the request). The City failed to identify which of the statutory exceptions codified at KRS 61.878 (1) it relied upon and explain how any exception applied to specific records withheld as required to discharge its duty under KRS 61.880(1) and (2)(c). For these reasons, the City's disposition of Mr. Robert's request was both procedurally and substantively deficient. However, the City did not violate the Act in denying access to nonexistent records.
Our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute," 01-ORD-36, p. 2, nor is the Attorney General's Office "empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." 08-ORD-206, p. 1; 18-ORD-221. The right to inspect public records only attaches if the records in dispute are "prepared, owned, used, in the possession of or retained by a public agency. " 7 02-ORD-120, p. 10. Accordingly, the Attorney General has consistently recognized that 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. A public agency violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record [s] exist[]," but discharges its duty under the Act in affirmatively indicating that no such record[s] exist[], or advising that it lacks possession and explaining why, following a reasonable search (95-ORD-96). 13-ORD-052, p. 3; 04-ORD-205; 12-ORD-065; 14-ORD-049. Although the intent of the Act is linked to KRS Chapter 171, pertaining to management of public records, at KRS 61.8715, the Act only regulates public access to records that currently exist and that are in the possession or custody of the public agency to which the request is directed. 8 99-ORD-202, p. 5; 16-ORD-019; 18-ORD-221. "It does not impose an obligation on agencies to create, procure, or retrieve a record to accommodate a request. This is not to say that a public agency can somehow secret away public records on private premises, and thus avoid the requirements of the Open Records Act. " Id. , p. 5. 9 See 06-ORD-201; 12-ORD-098. Compare 11-ORD-105.
In summary, the City cannot produce that which it does not have nor is the City required to "prove a negative" in order to refute a claim that certain phone logs were created or currently exist in the possession of the agency. See
Bowling v. Lexington Fayette Urban Cty. Gov't, 172 S.W.3d 333, 340-341 (Ky. 2005); 11-ORD-037; 15-ORD-059. Compare
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"). The absence of certain records that Mr. [Roberts] believes may or should exist in the possession of the [City] "is, simply stated, not actionable in an Open Records Appeal." 12-ORD-130, p. 5; 14-ORD-049; 18-ORD-207.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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 Clerk Parish noted that Mr. Roberts has "submitted 4 requests of this nature and scope since May 10, 2019." The City has been as "responsive as possible to each request" and intends to be "responsive to this request as well." However, she believes "the repeated requests for records of this nature and scope are intended to disrupt other essential functions" of the City. In so arguing, she implicitly relied upon KRS 61.872(6). The Attorney General has "rarely found sufficient evidence in the record on appeal to support a public agency's invocation of KRS 61.872(6) based on the agency's assertion that a single records request or repeated requests are intended to disrupt the agency's essential functions." 05-ORD-152, p. 5; 10-ORD-003; 17-ORD-268.
In Commonwealth v. Chestnut, 250 S.W.3d 655, 664-665 (Ky. 2008), the Kentucky Supreme Court recognized that a public agency "faces a high proof threshold [in denying a request based on KRS 61.872(6)]," and that it cannot rely on "inefficiency in its own internal recordkeeping system to thwart an otherwise proper open records request." The "obvious fact that complying with an open records request will consume both time and manpower," standing alone, is "not sufficiently clear and convincing evidence of an unreasonable burden." Id. Likewise, the need to redact protected information per KRS 61.878(4) "rise to the level of an unreasonable burden under KRS 61.872(6) because that is an existing statutory obligation." Id. at 664; 19-ORD-014. The City's bare assertion does not equate to clear and convincing evidence necessary to justify its reliance on KRS 61.872(6).
2 In the case of telephones or lines purchased or leased by public funds, records of their use belong to the public agency and are deemed to be public records. ( See 00-ORD-198 and decisions cited therein.)" 15-ORD-049, p. 2. However, any records of calls made on a personal telephone "are typically 'a result of the private contract with the phone company [or a] personal cell phone contract. 03-ORD-019." Id. Compare 16-ORD-019. In sum, whether those records constitute "public records" under KRS 61.870(2) "is dependent on the facts of the individual case." 17-ORD-223.
3 KRS 61.872(3) mandates the availability of public records "during the regular office hours of the public agency." Thus, "any attempt by a public agency to limit the period of time in which a requester may inspect public records places 'an unreasonable and illegal restriction' upon the requester's right of access." 02-ORD-094, p. 4 (citation omitted); 10-ORD-199. The only recognized exception is when a public agency "has a very small complement of employees or restricted and irregular office hours," neither of which has been established here. Id. "In the interest of absolute clarity," this office reiterates that Mr. Roberts (or any requester) "cannot be required to make an appointment to inspect the records, inasmuch as such a requirement could be interpreted as an illegal restriction on access, but may make such an appointment as a reasonable accommodation to the [City]." Id. , p. 5; 17-ORD-123.
4 He also enclosed a copy of a "Cell Phone Authorization Form" dated October 2005, authorizing Director Thompson to receive a cell phone stipend. The record on appeal is devoid of any further information such as the period of time for which it was valid. Because the City did not address the implications of the Form, however, this office reminds the City "that a document created using public funds stored or otherwise hidden on a private cell phone retains its status as a public record and will still be subject to the Open Records Act." 15-ORD-226, p. 5.
5 Our holding today is based on the lack of responsive cell phone logs in the possession of the City and its current employees; the statement that said employees use their "own private cell phones" would not otherwise be dispositive. This office has admonished "public employees against using private cell phones to carry out public work in an attempt to shield such communications from the purview of the Open Records Act." 19-ORD-011, p. 3 (citing 15-ORD-226). The facts presented in 19-ORD-011 established that a city council member had used his "private email account with the intent to shield the communications from the public." Id. In holding that responsive e-mails in his private account were public records, and therefore subject to disclosure unless a statutory exception applied, this office emphasized, "'A record that is 'used' by a public agency is a public record of that agency under the definition of the term 'public record' found at KRS 61.870(2).'" 19-ORD-011, p. 4 (citing 12-ORD-178). The instant appeal presents no basis to depart from this reasoning. Insofar as 15-ORD-226 suggests otherwise, that decision is hereby modified.
6 In the case of telephones or lines purchased or leased by public funds, records of their use belong to the public agency and are deemed to be public records[.]" 15-ORD-049, p. 2. However, any records of calls made on a personal telephone "are typically 'a result of the private contract with the phone company [or a] personal cell phone contract. 03-ORD-019." Id. Compare 16-ORD-019. In sum, whether those records constitute "public records" under KRS 61.870(2) "is dependent on the facts of the individual case." See 17-ORD-223.
7 KRS 61.870(2) defines "public record" as "all books, papers, maps, photographs, cards, types, discs, diskettes, recordings, software or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency."
8 Records Series L4969, "Telephone Record/Log," found on the Local Government Records Retention Schedule , "documents all outgoing and incoming calls and may be used to disburse telephone expenses to other local government agencies." No "Access Restrictions" are listed. The retention period for Series L4969 is one (1) year. Series L4969 would govern the retention and disposition of any existing responsive phone logs. However, "the applicable retention period and disposition instructions only govern existing records matching that description." 10-ORD-187, p. 5.
9 [L]ack of actual possession is not a sufficient basis for denying access to records" if the records being sought are being held "at the instance of and as custodian on the [public agency's] behalf[.]" 08-ORD-206, pp. 7, 13; See 00-ORD-207; 04-ORD-123; 05-ORD-015; 06-ORD-147; 08-ORD-206. Compare 97-ORD-15; 98-ORD-90; 09-ORD-009; 16-ORD-019.