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 Louisville and Jefferson County Metropolitan Sewer District violated the Open Records Act in the disposition of a series of open records requests submitted by David Rosell. In the absence of a prima facie showing by Mr. Rosell that MSD maintains specific records that have not already been disclosed to him, we find that MSD properly disposed of his requests by affording him access to all records within its custody that were responsive to those requests and thereafter notifying him that it maintains no additional responsive records. We examine each of these requests, and MSD's responses, below.
In a letter dated April 20, 2006, Mr. Rosell requested access to, and copies of, "all monetary expenses incurred by MSD as related to lawsuits, settlements, and complaints involving MAC Construction & Excavating dating from 1/1/1996 to present." Although a copy of its original response to this request was not appended to Mr. Rosell's letter of appeal, he did append a copy of MSD's June 5, 2006, letter referencing this request in which Legal Director Carolyn F. Shain indicated that "MSD has only been involved in litigation concerning MAC Construction on two occasions," and that she had previously "provided all . . . legal billings concerning those two cases."
Shortly thereafter, Mr. Rosell submitted a renewed request for "settlements and legal fees attached to the court cases and complaints contained in this letter," 1 expressing his concern that MSD had been less than forthcoming in producing all responsive records. Responding to these concerns, Ms. Shain advised him, in a timely fashion, that MSD had "provided all that [he] requested," and suggested that he identify "with specificity" any records he believed to exist to which he had not already been afforded access. Continuing, she observed:
We have searched our records and have no files on any of the cases which you attached except the Stalcup litigation. As you are aware, we provided the information on the Stalcup settlement for $ 2,000 in our latest correspondence with you. We do not have any files on the others. I advised in my last letter that the best place to search for files concerning the litigation would be the Circuit Court Clerk's Office, which is where I presume you obtained the front page of each complaint. As I am also sure you are aware, a public agency is not required by the statute to create records for you which do not already exist, and likewise, a public agency is not required to obtain such records for you from another source, such as the Clerk's Office. Please also remember, as we explained to you previously, all of our contractors sign a written contract wherein they agree to indemnify MSD and to hold it harmless from claims that arise during the course of constructing a project. Therefore, if any of the complaints involved a construction project, and I presume they would have, then MSD would not have paid for the defense and it would not have paid for the damages, if any, because it would have been indemnified.
In addition, Ms. Shain responded to Mr. Rosell's inclusion of documents relating to "the Indian Hills project . . . involv[ing] warranty items and requests for change orders." She reminded him that he had previously reviewed all pertinent files and obtained copies of the records he requested, emphasizing that he already "ha[s] all that [MSD has] on the subject."
On July 24, 2006, Mr. Rosell submitted a third request for:
all records and documentation associated with the following court cases of which MSD was named as defendants[,] including attorneys fees and amount of settlements. The following case numbers are from Jefferson Circuit Court . . .[:] Mary Lee and Hubert Stalcup -- 02CI00148, John and Janet Conti -- 03CI06884, Dr. Timothy and Elizabeth Stivers -- 93CI05046, William and Martha Martin -- 02CI04054, Laura Carr -- 00CI06984, Robert and Emily Rice -- 94CI06490, Thomas and Sharon Winters -- 97CI05033.
Responding to these requests, Ms. Shain advised:
Per our discussion, re: Mary Lee and Hubert Stalcup, 02CI100148; we have given you everything in our files concerning payment to the Stalcups by MSD; re: John and Janet Conti, 03CI06884, you may come to the office to view our file with all information in our possession concerning the Contis; re: Dr. Timothy and Elizabeth Stivers 93CI1105046, the file containing all information that we have re the Stivers is available for you to view at our office; re: William and Mary Martin; 02CI104054, we have no information in our files concerning the Martins; re: Laura Carr; 00CI06984, all information that we have in our files concerning Laura Carr is available for you to view at our office; re: Robert and Emily Rice 94CI06490 and Thomas and Sharon Winters 97CI05033, we have no information in our files concerning either of these cases and/or Robert and Emily Rice and Thomas and Sharon Winters.
Mr. Rosell thereafter initiated this open records appeal, questioning MSD's position that it maintains no records on three of the lawsuits identified in his requests, including records documenting settlements reached in those suits.
In correspondence directed to this office following commencement of Mr. Rosell's appeal, Ms. Shain elaborated on MSD's position. Reiterating that MSD "has provided to Mr. Rosell all of the records in its possession," she explained:
We have researched all of our files, have reviewed all of the stored files which have been retained and have searched all of our financial records. We have never told Mr. Rosell that we are withholding any documents, and we are not withholding any records which he had requested. We have made an exhaustive search of all known records and were not able to find the records that he believes exist. We have provided all of the documents that are in our possession. I know of no way to prove a negative, i.e., that we do have a particular document in our files. We should point out that we have provided him access to literally hundreds of documents, at great time and inconvenience to our schedules (in eight separate open records requests, including one wherein he requested copies of all of his own prior open records requests) so why would we withhold the information that he lists?
It was her position that "it would have been far easier to produce the records he asked for than to keep explaining to him that we do not have them." For the reasons set forth below, we affirm MSD's disposition of Mr. Rosell's requests.
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, 2 pertaining to management of public records, the Act regulates access to public records that have been prepared, owned, used, in the possession of or retained by a public agency. 3 Our decisions in open records disputes are therefore generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record, and, if so, whether the record is subject to public inspection. Thus, in an early opinion the Attorney General observed:
There are two legal thresholds which must be crossed by a person seeking to compel access to documents under the Open Records Law, KRS 61.870 to 61.884; (1) the custodian of the records must be a "public agency" as defined in KRS 61.870(1) , and (2) the documents to be inspected must be "public records" as defined in subsection (2) of the same statute. Unless and until those thresholds are crossed it is not necessary to consider the provisions of the law pertaining to exemptions (KRS 61.878) or pertaining to an unreasonable burden in producing voluminous public records (KRS 61.872(6)).
OAG 82-27, p. 3 (overruled on other grounds in OAG 82-277). Simply put, Kentucky's Open Records Act applies to records that are already in existence, and that are in the possession or control of the public agency to which the request is directed. See, e.g., 95-ORD-125 (Louisville Firefighters Pension Fund properly denied request for confirmation tickets reflecting investment transactions made on its behalf by a private corporation with which the Fund had contracted to manage its assets); 97-ORD-15 (University of Kentucky was not obligated to retrieve a fee agreement between a University employee and a private attorney from the attorney in whose custody the agreement resided); 98-ORD-90 (correctional facility was not obligated to contact a toothpaste manufacturer to obtain a copy of the material safety data sheet for toothpaste used at the facility in order to satisfy an inmate's open records request).
MSD has repeatedly declared that it has produced for Mr. Rosell's inspection and copying all existing records that are responsive to his request, and that it cannot "prove a negative" relative to the nonexistence of particular records in its files. Addressing this dilemma, in
Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), the Kentucky Supreme Court observed:
The Open Records Act is silent as to the procedure to be followed when a requester seeks to enforce the Act over a public agency's denial of the record's existence. The Act contemplates that an agency will deny an open records request when it believes that the requested records are exempt, but it does not envision a situation . . . where the agency claims that the records do not exist.
. . .
[T]he best way to uphold [the basic policy of the Act, recognizing "that free and open examination of records is in the public interest," when an agency denies the existence of the requested records] is to ensure that the complaining party has an opportunity to disprove a public agency's denial of the existence of records . . . To hold otherwise could remove accountability from the open records process, allowing public agencies to avoid judicial review by denying a record's existence altogether rather than claiming a statutory exemption.
Nevertheless, the Court continued:
[T]he General Assembly has also evidenced a concern that public agencies not be unreasonably burdened and that essential functions not be disrupted by open records requests. KRS 61.872(6). The unfettered possibility of fishing expeditions for hoped-for but nonexistent records would place an undue burden on public agencies. In order to refute a complaining party's claims to a nonexistent record, the agency would essentially have to prove a negative, presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives.
On this basis, the Court concluded "that before a complaining party is entitled to such a hearing [to disprove the agency's denial of the existence of the requested records], he or she must make a prima facie 4 showing that such records do exist."
In support of his claim that MSD must maintain additional responsive records, Mr. Rosell submits the first page of a series of complaints filed in the Jefferson Circuit Court in which MSD is named as a party. Ms. Shain explains that all contractors "sign a written contract wherein they agree to indemnify MSD and hold it harmless from claims that arise during the course of a construction project, " and that therefore "MSD would not have paid for the defense . . . [or] damages, if any, because it would have been indemnified. " This accounts for the paucity of records relating to the complaints. In the absence of a prima facie showing that records relating to these complaints reside in MSD's custody, we are obliged to affirm MSD's disposition of his requests.
Having so concluded, we nevertheless remind MSD that the courts and this office have, on more than one occasion, declared that public records in the custody of a private agent, or that are otherwise secreted away on private premises, are subject to public inspection unless otherwise exempt. Thus, if records responsive to Mr. Rosell's requests reside in the custody of a private agent, such as a contract law firm or insurance company, as custodian for MSD, and those records were prepared, owned, and used at the instance of MSD, it is incumbent on MSD to retrieve the records and produce them for Mr. Rosell under the rule announced in City of Louisville v. Brian Cullinan, No. 1998-CA-001237-MR and Cross Appeal No. 1998-CA-001305-MR (Ky. App. 1992) 5 (rejecting city's argument that documentation of legal expenses billed to the city by its contract attorneys, and in the contract attorneys' custody, were not public records because the city was not in possession of the items requested), and 00-ORD-207 (rejecting city's argument that settlement agreement disclosing the amount of money paid by city's liability insurance carrier, and in the carrier's custody, could not be "opened by a demand upon the city"); accord, 04-ORD-123. MSD may wish to review its disposition of Mr. Rosell's requests in light of these holdings.
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 Mr. Rosell did not include a copy of the referenced letter in his appeal.
2 See, KRS 61.8715.
3 See, KRS 61.870(2).
4 Black's Law Dictionary, 1071 (5th ed. 1979), defines the term "prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."
5 Although City of Louisville v. Brian Cullinan is an unpublished opinion that, in accordance with Rules of Civil Procedure 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 that a public agency cannot frustrate access to public records by allowing them to indefinitely reside in the custody of a private agent.