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 City of Frankfort violated the Open Records Act in denying Michael R. Fitzpatrick's December 21, 2004, request for access to "records, contracts, billing, phone records, written and verbal motions (agreements) pertaining to any and all retainer agreements with the law office of John O. Sheller since 1999." Expressing the view that "[n]o aspect of KRS 61.878 would preclude the city from providing this information," Mr. Fitzpatrick also requested "written documentation on who is accountable for the continued blind, monetary relationship with this law firm. " For the reasons that follow, we find that the city's denial of Mr. Fitzpatrick's request was procedurally deficient but substantively correct.
In a response dated December 29, 2004, Frankfort City Clerk Ramona W. Newman advised Mr. Fitzpatrick that his request was "denied, per KRS 61.878, as the records requested pertain to ongoing litigation, and discovery of this information is not required by the Kentucky Rules of Civil Procedure. " More than one year later, Mr. Fitzpatrick initiated this appeal.
In supplemental correspondence directed to this office following commencement of Mr. Fitzpatrick's appeal, Frankfort City Attorney Robert C. Moore amplified on the city's position. With reference to Mr. Fitzpatrick's request for "records, contracts, billing, phone records, written and verbal (motions) agreements pertaining to any and all retainer agreements with the law office of John O. Sheller," (Mr. Moore's emphasis), Mr. Moore advised:
The city has no retainer agreements with John Sheller; therefore, Mr. Fitzpatrick's request is moot. Additionally, there is no "written documentation on who is accountable for this continued blind, monetary relationship with this law firm, " therefore this request is also moot.
Anticipating the possibility of a future request for billing statements issued by Mr. Sheller to the city, Mr. Moore opined that "such billing statements would be exempt pursuant to the attorney client privilege because they describe with particularity discussions between the City Solicitor and Mr. Sheller, the City's counsel[,] . . . [and] the nature of documents prepared and issues researched." On this basis, Mr. Moore concluded that "if requested, the confidential information in these documents would need to be redacted to remove all of the attorney-client privileged information." In support, Mr. Moore cited 05-ORD-155, "stat[ing] the law with respect to making records subject to the attorney-client privilege available for review pursuant to Kentucky's Open Records Act. " With the exceptions noted, we find the city's ultimate disposition of Mr. Fitzpatrick's request largely persuasive.
We begin by noting certain procedural deficiencies in the City of Frankfort's initial response to Mr. Fitzpatrick's request. This determination turns on the degree to which the city's response fell short of the legal requirements for agency response codified at KRS 61.880(1). 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. 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.
(Emphasis added.) In construing this provision, the Kentucky Court of Appeals has declared that "[t]he 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). The city's response to Mr. Fitzpatrick's request was deficient insofar as it failed to address the existence or nonexistence of responsive documents, vaguely referencing instead the presence of litigation and the restrictions on the scope of discovery found in the Kentucky Rules of Civil Procedure. Had responsive documents in fact existed, the city would have been obligated to cite the specific exception authorizing whole or partial nondisclosure of the records, and explain the application of the cited exception to the records or parts of records withheld. We urge the city to review the cited provision to insure that future responses conform to the requirements of the Open Records Act.
Nevertheless, the Attorney General has long recognized that a public agency cannot be expected to honor a request for records which do not exist inasmuch as the agency cannot produce for inspection or copying that which it does not have. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 99-ORD-198; 98-ORD-200; 97-ORD-17; OAG 91-112; OAG 87-54; OAG 83-111. The public's right of inspection attaches only after the requested records 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. In addressing the obligations of a public agency denying access to public records on this basis, the Attorney General has observed:
[A]n 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 [other citations omitted]. While it is obvious that an 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; 04-ORD-205.
Accordingly, this office has held that a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists." 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 04-ORD-046, p. 4; 03-ORD-205, p. 3. Conversely, an agency discharges its duty under the Open Records Act by affirmatively so indicating. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 03-ORD-205, p. 3; 99-ORD-98. When an agency denies the existence of requested records, it is not generally "incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute" absent a reason to question the truthfulness of the agency's assertion. 01-ORD-36, p. 2; 04-ORD-205; 02-ORD-144; 94-ORD-140. Rather, the role of the Attorney General in adjudicating an open records dispute is narrowly defined by KRS 61.880(1), and this office is without authority to deviate from that statute.
Whether intentionally or unintentionally, Mr. Fitzpatrick's request was very narrowly drawn, seeking access to six categories of records relating to retainer agreements with Mr. Sheller's office. The nonexistence of a retainer agreement necessarily meant the nonexistence of any related records. Although its original response was, as noted, deficient, the city subsequently corrected this deficiency by notifying Mr. Fitzpatrick that no documents answering his description exist. In so doing, the city's actions conformed to the line of decisions cited above which hold that "[i]f a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4; see also,
Bowling v. Lexington Fayette Urban County Government, Ky., 173 S.W.3d 333, 340, 341 (2005).
Although there may be occasions when the Attorney General requests that any agency substantiate its denial based on the nonexistence of requested records by demonstrating the efforts undertaken to locate the records or explaining why no such records were generated, consistent with the mandate of KRS 61.8715, 1 further inquiry is not warranted on the facts presented. 2 Assuming that the City of Frankfort made a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," the city discharged its statutory duty by ultimately notifying Mr. Fitzpatrick that no responsive records were found. 3 02-ORD-144; 01-ORD-38; 97-ORD-161; OAG 91-101; OAG 90-26; OAG 86-38. Because the City of Frankfort cannot produce for inspection or copying a record or records which do not exist, and has complied, albeit belatedly, with the statutory duty to respond to Mr. Fitzpatrick's request by so notifying him, this office finds no error in the city's disposition of Mr. Fitzpatrick's request.
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 In relevant part, KRS 61.8715 provides: "The General Assembly finds an essential relationship between the intent of [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records, . . ."
2 We have confirmed with representatives of the League of Cities and the Department for Libraries and Archives that there is no legal requirement that a written retainer or contract with a private attorney representing a city be executed.
3 We cannot agree with the city's characterization of the issues on appeal as "moot. " Such would be the case if, and only if, responsive documents were located and disclosed to Mr. Fitzpatrick while his appeal was pending but before this office issued a decision in this matter per 40 KAR 1:030 Section 6.