Request By:
Hobert T. Berry
1566 Big Brush Creek Road
Buffalo, KY 42716Tim Judd, Chairman
Green County Sanitation District # 1
P.O. Box 188
Summersville, KY 42782Jeffery L. Eastham
Green County Attorney
103 West Court Street
P.O. Box 127
Greensburg, KY 42743-0127Richard Belding, Director
Public Records Division
Department for Libraries and Archives
300 Coffee Tree Road
P.O. Box 537
Frankfort, KY 40601
Opinion
Opinion By: A. B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Green County Sanitation District # 1 violated the Open Records Act in the disposition of Hobert T. Berry's June 7, 2002 request for records relating to the District. For the reasons that follow, we find that the District's disposition of the request was both procedurally and substantively deficient.
On June 7, Mr. Berry requested a copy of:
1. The by-laws of Green County Sanitation District # 1;
2. The annual audit for the past five years;
3. The current financial statement;
4. A written explanation of why meetings are never advertised in violation of the open meetings law;
5. The most recent inspection report by the Division of Water.
Mr. Berry submitted his request to the District's "Chairman" having been unable to determine who serves the District as chairman, much less who serves the District as official custodian of records for open records purposes. 1 Having received no response to his request, Mr. Berry initiated this appeal on July 10, 2002.
Upon receipt of Mr. Berry's appeal, the Attorney General issued notification of same to Tim Judd, apparent District Chairman, and Jeffery L. Eastham, Green County Attorney, on July 15, 2002. Despite having advised the District that it could respond to Mr. Berry's appeal on or before July 15, 2002, this office received no communication from the District until July 25, 2002 when Mr. Eastham notified us that "Green County Sanitation District # 1 is in the process of complying with [Mr. Berry's] request." On August 1, we contacted Mr. Eastham to ascertain whether the records had been disclosed. Mr. Eastham indicated that he believed that the request had been honored, but could not verify compliance. He suggested that we contact Leslie Jewell, a member of the District's board, but our attempts to reach him by telephone were unsuccessful. We therefore contacted Mr. Berry who indicated that he had received no responsive records, or indeed, any communication from the District. Later, Mr. Berry called the undersigned Assistant Attorney General and stated that he had that day received a package containing the District's by-laws, annual audits for the fiscal years ending December 31, 1997, and December 31, 1998, and a copy of the District's most recent inspection report. Mr. Berry noted that the District furnished him with minutes of its meetings, but no explanation for its failure to advertise those meetings. 2 He indicated that he did not receive a copy of the District's current financial statement or a written explanation for the missing audits. It is the opinion of this office that the District's efforts were legally insufficient.
KRS 61.880(1) establishes procedural guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request 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. Any agency 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 response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In construing this provision, the Kentucky Court of Appeals has observed:
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, Ky.App., 926 S.W.2d 856, 858 (1996). It is incumbent on every public agency to discharge its duties under KRS 61.880(1) by issuing a written response to a request for records within three business days of receipt, and, if all or any part of the request is denied, to cite the exception authorizing nondisclosure and explain its application to the record withheld. To the extent that Green County Sanitation District # 1 failed to respond in writing, and within three business days, to Mr. Berry's request, the District violated KRS 61.880(1).
Turning to the substantive issue in this appeal, we assume that no responsive records exist relative to Mr. Berry's request for a current financial statement or audits for three of the last five years. The District's inability to produce these records due to their apparent nonexistence is tantamount to a partial denial of Mr. Berry's request, and it was incumbent on the District to so state in clear and direct terms. OAG 86-38; OAG 91-101; 96-ORD-164; 97-ORD-16; 01-ORD-38.
This office has long recognized that a public agency cannot furnish access to records which do not exist. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17. We have also recognized that it is not our duty to investigate in order to locate documents which do not exist or have disappeared. OAG 86-35. Thus, at page 5 of OAG 86-35 we observed, "This office is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the party seeking to inspect such documents."
In 1994 the Open Records Act was amended. The Act now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740, dealing with the management of public records, and KRS 61.940 to 61.957, dealing with the coordination of strategic planning for computerized information systems]." KRS 61.8715. The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id .
Since these amendments took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based on the nonexistence of the requested records. In order to satisfy its statutory burden of proof, an agency must, at a minimum, offer some explanation for the nonexistence of the records. See, for example, 94-ORD-140 (records of investigation not in sheriff's custody because sheriff did not conduct investigation; 97-ORD-17 (evaluations not in university's custody because written evaluations were not required by university's regulations) . The Green County Sanitation District # 1 fails to offer even a minimal explanation for the nonexistence of the financial statement and audits identified in Mr. Berry's request. Accordingly, we are unable to determine if the District has established an adequate basis or explanation for the nonexistence of these records, and thus met its statutory burden of proof. KRS 61.880(2)(c) . For this reason, we have referred this matter to the Department for Libraries and Archives for a determination whether additional inquiries are warranted under Chapter 171, and in particular KRS 171.640 requiring adequate and proper documentation of essential transactions of an agency.
Ultimately, of course, we cannot afford Mr. Berry the relief he seeks, namely access to the financial statement and audits identified in his request. We cannot declare the failure to produce nonexistent records a violation of the Open Records Act or compel the disclosure of records which were never created.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Pursuant to KRS 61.876, all public agencies are required to designate an individual to fill the role of official custodian of records and to adopt and post rules and regulations identifying that individual as official custodian so that open records requests can be directed to him or her for timely processing and final agency action. 99-ORD-30.
2 In the course of this discussion, the undersigned advised Mr. Berry that the Open Records Act governs access to existing public records and that the District was not obligated to create a record, such as an explanation for its apparent failure to give notice of special meetings pursuant to KRS 61.823, in response to a request. The undersigned further advised him that he could initiate an open meetings appeal concerning this allegation after submitting a written complaint to the District's presiding officer in which he identified a specific violation and proposed remedial action pursuant to KRS 61.846(1).