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 Office of Graves County Judge/Executive Jesse Perry ("Judge/Executive" or "Judge Perry") violated the Open Records Act in the disposition of Glenn S. Hayden's October 25, 2019, request for "copies of the Financial Instruments, Invoice, Purchase Order, supporting documentation and the schedule to 'publish' the WRIT OF ELECTION dated March 21, 2019 throughout Calendar Year 2019[.]" 1Mr. Hayden further asked the Judge/Executive to "provide how this Writ of Election was 'published.' That is, which newspaper, electronic means, local television news, etc., and when they were to be published via a written agreement (i.e., Purchase Order, letter, memo, email, etc.)." Lastly, he asked, "which entity paid for this publishing activity of this Writ of Election ( i.e. , Fiscal Court budget [or] Graves County Sheriff's Dept. budget[,] etc.)." 2
In a timely response per KRS 61.880(1), Judge Perry advised Mr. Hayden that he was attaching responsive documents without further explanation. Mr. Hayden promptly notified Judge Perry that his response was incomplete. 3Specifically, he stated that he did not receive a copy of any purchase order concerning the publication of the Writ of Election in [ The Mayfield Messenger ] on March 24, 2019; "the document that authorizes the publishing of this document, and authoriz[es] the commitment of public funds"; or " ANY documentation and schedule of advertising/publishing the WRIT OF ELECTION dated March 21, 2019 [i]n the" October 20, 23, and 25, 2019, newspapers. He acknowledged receipt of responsive documentation regarding the advertisement of the March 21, 2019, Writ of Election that appeared in the March 24, 2019, newspaper, but challenged Judge Perry's failure to provide documentation regarding the advertisements that appeared in the October 20, 23, and 25, 2019, newspapers; he further noted the October 27, 2019, advertisement was replaced with a different advertisement for a blood drive. Lastly, he asked Judge Perry to provide the purchase order authorizing the "advertising/publishing of this WRIT OF ELECTION -- to include the scheduling of this advertising/publishing; Invoicing from [ The Mayfield Messenger ]; Payment Voucher for those advertisement[s]/publishing discussed [i]n the part -- October 20, 23, 25 and 27, 2019 ." By e-mail dated October 31, 2019, Graves County Treasurer Codie Courtney asked Mr. Hayden to submit a new request.
Judge Perry cannot produce nonexistent records for inspection or copying, and is not statutorily required to answer questions or compile information to comply with a request. He also ultimately explained the nonexistence of additional responsive documentation. Accordingly, this office affirms the disposition of Mr. Hayden's request.
On appeal, Mr. Hayden asserted that he only received half of the records that he requested. He reiterated that Judge Perry did not provide him with any of the responsive documents from October 20, 23, and 25, 2019. Upon receiving notification of his appeal, however, Judge Perry stated: "The Graves County Fiscal Court has supplied all documentation available requested by Mr. Glenn Hayden. . . . The documentation of the published Writ of Election in [ The Mayfield Messenger ] is not available due to it being published in October 2019 and there are no records to supply. As of this date, November 5, 2019, [the] Fiscal Court has not received an invoice for the publications."
This office has clarified that, "The purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; 04-ORD-144; 10-ORD-156. For this reason, the Attorney General has consistently held that requests for information as opposed to requests for public records, "need not be honored." 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080; 17-ORD-276. In addressing this question, the Attorney General has long recognized that, "obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying." 04-ORD-080, p. 13 (citation omitted). A public agency is not required under the Act to gather and supply information independent of that which is set forth in public records. Id. Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id. p. 5, OAG 91-12, p. 5; 16-ORD-236; 17-ORD-015. The statutory language upon which these decisions are premised, found at KRS 61.871, KRS 61.872(1), and KRS 61.872(2), validates this position. A public agency is only able, in lieu of denying a request for information, to make any non-exempt records that may contain the information being sought available for inspection or copying if such records were created and currently exist in the possession or control of the agency. 10-ORD-156, p. 3; 14-ORD-073. Based on Judge Perry's appeal response, it appears that his office provided Mr. Hayden with all existing documents responsive to his request; he was not required, under the Open Records Act, to answer the questions that Mr. Hayden asked.
The right to inspect records, and the corollary right to receive copies, only attaches if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency." KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. A public agency cannot produce that which it does not have nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that a certain record exists. 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"); 07-ORD-188; 12-ORD-087; 15-ORD-164; 16-ORD-091. 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"); 12-ORD-195; 18-ORD-207. Under the circumstances presented, 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 "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; 12-ORD-231; 18-ORD-207. Moreover, when some of the documents requested have been disclosed, this office has generally declined to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 4; 12-ORD-087; 14-ORD-204; 17-ORD-276.
As in this case, when a public agency denies that additional responsive documents exist, and the record on appeal supports rather than refutes that contention, further inquiry is unwarranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 11-ORD-037. The record on appeal is devoid of any evidence to conclusively refute the Office of the Judge/Executive's position that no additional documents responsive to Hayden's request currently exist notwithstanding any discrepancies that Mr. Hayden perceives between the records provided and those he believes may or should exist. See 17-ORD-127. "[O]bjections to alleged inaccuracies and omissions in the records disclosed" cannot be resolved in the context of an open records appeal. 10-ORD-178, p. 2; 12-ORD-162; 18-ORD-207. Nor can this office direct a public agency to create records "or declare is failure to do so a subversion of the intent of the Open Records Act." 95-ORD-48, p. 2; 15-ORD-164. Likewise, Judge Perry was not statutorily obligated to create a record or compile a list including any requested information that was not contained in existing records. See 16-ORD-090; 18-ORD-2017.
However, in construing KRS 61.880(1), the Court of Appeals held, "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996). A "limited and perfunctory response," the court recognized, does not "even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance." Id. ; 01-ORD-183, pp. 2-3; 07-ORD-139; 11-ORD-158. Thus, in addressing the obligations of a public agency denying access to public records based upon their nonexistence or its lack of possession, this office has consistently observed that a public agency's "inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms ." 01-ORD-38, p. 9 (internal citations omitted); 12-ORD-162; 18-ORD-175.
While it is obvious that a public agency "cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient." 02-ORD-144, p. 3; OAG 90-26, p. 4; 09-ORD-145; 10-ORD-215. Thus, a response by a public agency violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," but a public agency discharges its duty under the Act in affirmatively so indicating. 98-ORD-154, p. 2 (citation omitted); 03-ORD-205, p. 3; 04-ORD-205, p. 4; 09-ORD-145. It was "therefore incumbent on [Judge Perry] to ascertain whether records exist[ed] that [were] responsive to [Mr. Hayden's] request, to promptly advise him of [its] findings, and to release to him all existing [nonexempt] records identified in his request." 03-ORD-207, p. 3. Insofar as Judge Perry initially failed to specify that no additional documents responsive to Mr. Hayden's request existed in the possession of the agency, his original response was deficient. See 09-ORD-145; 16-ORD-104; 17-ORD-204; 18-ORD-175; 19-ORD-055. However, Judge Perry has now provided Mr. Hayden with all existing documents potentially responsive to each item of his request and credibly explained on appeal why no additional documents exist. See 14-ORD-209. Simply stated, "this office is not empowered to resolve a 'swearing contest' between the parties." 98-ORD-146, p. 6. The absence of certain records that Mr. Hayden believes may or should exist in the possession of the Judge/Executive "is, simply stated, not actionable in an Open Records Appeal." 12-ORD-130, p. 5; 12-ORD-065; 14-ORD-049. See 12-ORD-110; 18-ORD-207.
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.
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