Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Barren River Regional Board of Ethics violated the Open Records Act in the disposition of L. Michael Smith's January 31, 2004 request for records and information relating to two ethics complaints he filed with the Board which the Board declined to entertain. For the reasons that follow, we find that the Board's response was procedurally deficient and substantively correct only in part.
In his January 31 letter to Board of Ethics Records Administrator Jo Lynn Vincent, Mr. Smith requested:
1) a list of the persons who participated or otherwise served in this matter and a list of those who are currently serving . . ., includ[ing] the members of the Board, any preliminary panel, and/or any adjudicatory panel;
2) any documents in which any members declined to serve;
3) any documents filed in these matters by any persons, including [the individuals against whom the complaints were leveled].
Having received no response to his request, Mr. Smith initiated this appeal on February 18, 2004, asserting that he "should at least receive a response within 3 business days after a request for public documents, even if the . . . Board intends not to disclose the documents. . . ."
In correspondence directed to this office following commencement of this appeal, Board of Ethics Executive Director Dot Darby advised that the Board "did not see Mr. Smith's letter as an open records request since we had been corresponding with Mr. Smith on a regular basis since August, 2003, either by phone or in writing as actions were taken by the . . . Board." Noting that on February 20, "staff did send a letter to Mr. Smith's January 31 letter," she observed:
The Records Administrator has a formal process that must be completed under an Open Records request and Mr. Smith did not request in writing or verbal correspondence that information be provided under the Open Records Act and no charges were billed to Mr. Smith for copying costs of the materials submitted to him.
Ms. Darby enclosed a copy of her February 20 response to Mr. Smith in which she listed the ten members of the Board, and indicated that the Board does "not have any other panel that has discussed the complaints." In response to Mr. Smith's request for all documents filed in these matters, Ms. Darby advised that "[t]here have not been any documents filed, except what [he] sent to the Ethics Board," but provided him with the minutes of the August and December meetings. She did not specifically respond to his request for "any documents in which any members [of the Board] declined to serve." 1 It is the decision of this office that the Board's disposition of Mr. Smith's request was only partially consistent with the requirements of the Open Records Act.
To begin, we find that regardless of whether Mr. Smith's request was specifically identified as an open records request, the Barren River Regional Board of Ethics was statutorily obligated to respond in writing, and within three business days, to that request and that its failure to do so constituted a violation of KRS 61.880(1). With reference to the sufficiency of a records request, this office noted, in 99-ORD-148, that even if a request "is not identified as an open records request submitted under authority of Chapter 61 of the Kentucky Revised Statutes, it satisfie[s] the requirements of KRS 61.872(2), relative to written application, [as long] as it describe[s] the records to be inspected, and [is] signed by the applicant, with his name printed legibly thereon." 99-ORD-148, p. 2. When such a request is tendered, the statutory requirements codified at KRS 61.880(1) are triggered, and an agency is obligated to respond in a proper and timely fashion.
KRS 61.880(1) 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. An 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 KRS 61.880(1), 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, 857 (1996). As noted above, that response must be in writing and issued within three business days of receipt of the request. "A limited and perfunctory response," the court concluded, does not "even remotely compl[y] with the requirements of the Act . . . ." Id. The failure to issue any response constitutes a clear violation of KRS 61.880(1).
Mr. Smith's January 31 letter satisfied the minimum requirements of a properly framed open records request found at KRS 61.872(2) insofar as it was in writing, described the records to be inspected, was signed by the applicant, and contained his name printed legibly thereon. This being the case, the Board was obligated to issue a timely response. "The duty to properly respond does not place an undue burden upon public servants," the Court of Appeals has observed, "[t]he agency may deny the request, or may ask for a more specific request, or may even tell the person asking for the documents that another custodian has the records, but the agency is required to promptly respond to the request in some fashion." George William Sykes v. James Kemper, Ky. App., 2000-CA-000714-MR (3/30/01), pet. for rehearing denied July 20, 2001 (unpublished opinion holding that the failure to issue a timely response to an open records request was not excused by the requester's failure to identify the request as a request made under KRS 61.870 et seq. ). 2 A written response transmitted to Mr. Smith following commencement of his appeal did not satisfy the requirements of KRS 61.880(1).
Nor are we persuaded that Mr. Smith's failure to utilize the "formal process" established by the Ethics Board's records administrator for accessing records under the Open Records Act relieved the Board of its statutory obligation. On this issue, the Attorney General has repeatedly observed:
A public agency cannot demand or require more in regard to a request to inspect public records than is required by KRS 61.872(2) . The public agency may require, if it desires to do so, that a request or application be in writing. If a written request or application is required, the statute is satisfied if the written application whether or not submitted on the public agency's form contains the following:
94-ORD-101, p. 3. This position is premised on the notion that:
Public agencies may put into their regulations the requirement for written application but we believe it is contrary to the letter and spirit of the open records law for an agency to make it more difficult to inspect a public record than it was before the open records law was enacted.
OAG 76-588, p. 2; see also 97-ORD-141; 97-ORD-175; 01-ORD-168. In sum, "there is nothing in the statute which authorizes a public agency to reject a request simply because the requester did not use the specific form devised by the public agency, " or in this case the "formal process" established by the Ethics Board's records administrator. 94-ORD-101, p. 3; 03-ORD-086. A particular form or process "may be desired or suggested by a public agency but failure to use that form [or process] cannot be the basis for rejecting a request to inspect records." Id.
Turning to the substantive issues in this appeal, we find that although the Ethics Board belatedly furnished Mr. Smith with a list of the Board's members, affirmatively advising him that no other panels discussed his complaints and therefore no other lists of members exist, and expressly denied the existence of any documents filed with the Board in relation to his complaints, the Board erred in failing to respond to that portion of his request seeking "documents in which any member declined to serve." With respect to the former, the Attorney General has consistently held that an agency cannot produce records that do not exist. See, e.g., OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-112; 94-ORD-65; 96-ORD-41; 01-ORD-11; 01-ORD-168. Nothing appears in the record on appeal to raise the issue of the Board's veracity or to call into question its assertion that no preliminary or adjudicatory panels exist and no documents have been filed in relation to Mr. Smith's complaints. The Barren River Regional Board of Ethic's failure to produce for inspection records that do not exist therefore does not constitute a substantive violation of the Open Records Act.
Nevertheless, we find that the Board erred in failing to address that portion of Mr. Smith's request relating to "documents in which members declined to serve." With reference to requests for which no agency response is given, this office has consistently held that it is incumbent on the agency to conduct a search for responsive records, to produce for inspection all nonexempt records that search yields, and if the search yields no results to affirmatively so advise the requester. OAG 86-38; OAG 91-101; 96-ORD-101; 97-ORD-180; 02-ORD-187; 02-ORD-208. The Ethics Board's failure to do so constituted a violation of the Open Records Act and the Board should take immediate measures to rectify this error in a manner consistent with the position set forth above.
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.
L. Michael Smith177 West 4th StreetRussellville, KY 42276
Jo Lynn VincentBarren River Regional Ethics BoardP.O. Box 90005Bowling Green, KY 42102-9004
Dot DarbyExecutive DirectorBarren River Area Development DistrictP. O. Box 90005Bowling Green, KY 42102-9005
Footnotes
Footnotes
1 Additionally, Mr. Smith raised, and Ms. Darby responded to, various issues pertaining to the Board's decision to "decline" his complaints. Because these issues do not arise under the Open Records Act, we do not address them in our decision.
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2 Although George William Sykes v. James Kemper is an unpublished opinion that, in accordance with Rules of Civil Procedure (CR) 76.28(4)(c), cannot be cited or used as authority in any other case in any court of this state, it is indicative of the view the courts might adopt in a later published opinion relative to the duties of public agencies upon receipt of an open records request not clearly identified as such.
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