Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Hopkins County Joint Planning Commission violated the Kentucky Open Records Act in denying the request of Michael Konyn for a "certified copy under seal of the survey that was done on my property on Brown Badgett Loop, City of Madisonville, County of Hopkins, [w]hen and by whom." More specifically, Mr. Konyn requested "the survey data and all related data" reflecting how the Commission "derived that the ground height is 426 feet, and to show in large enough print where the [E]lk [C]reek [T]ributary is and what waterway it is part of," records documenting "during the past 50 years what areas have flooded," and "all records from 1995 through 1998 [f]or the area of Brown Badgett [L]oop, as well as [b]uilding plans giving elevations or other information, for this area." Having affirmatively indicated to Mr. Konyn that records containing the information requested are not in the custody or control of the Commission, to the extent such records exist, provided a credible explanation of why such records would be maintained elsewhere, and substantially complied with KRS 61.872(4) by providing him with contact information for the custodial agencies, the Commission fully discharged its duty under the Open Records Act; a public agency cannot produce for inspection or copying nonexistent records or those which it does not possess nor is a public agency required to honor a request for information or create a record to satisfy a request.
By letter dated April 23, 2007, Mr. Konyn submitted his original written request (entitled "Notice of Petition") for a certified copy of the survey in question 1 to Christina Groves; on April 24, 2007, Mr. Konyn sent a second letter to Ms. Groves asserting that because she had forwarded copies of his "'Notice of Petition' to the offices that do not have this information" and the Commission "is attempting to keep this information from being released," his request was being submitted under the Freedom of Information Act. 2 On May 11, 2007, Mr. Konyn directed a letter to "Ted or Christina" placing a "demand for the information" under the Kentucky Open Records Act. By letter dated May 16, 2007, Mr. Konyn acknowledged there was a "possibility that [he] did not make clear the information that he wanted" and then identified the records and information in the manner specified above.
In a timely written response, Derek E. (Ted) Adkins, Director, responded on behalf of the Commission, advising Mr. Konyn that items he requested "are not in the custody or control of the [Commission]." Quoting KRS 61.872(4) , 3 Mr. Adkins further explained that all information "collected in relation to the Map Modernization Project is coordinated thru":
Kentucky Division of Water
Attn: Carey Johnson
14 Reilly Road
Frankfort, KY 40601
Likewise, Mr. Adkins notified Mr. Konyn that all "information collected regarding the construction of the structure at 80 Brown Badgett Loop is located with":
City of Madisonville
Building Permit Department
37 East Center Street
Madisonville, Kentucky 42431
In conclusion, Mr. Adkins suggested that Mr, Konyn "could possibly contact the original builder of the structure for more information."
By letter dated May 21, 2007, Mr. Konyn initiated this appeal, explaining that he has "been attempting to acquire information on how [and] when the new Flood Mapping (FIRM) determined elevations. " 4 Although Mr. Konyn received a computer disc with some unretrievable information it was "not what was requested." In his view, the Commission is again "giving [him] the run around by giving a coordinated through person and not the 'OFFICIAL CUSTODIAN' of such records." According to Mr. Konyn, "these records either do not exist or the information that we are being supplied is questionable in nature."
Upon receiving notification of Mr. Konyn's appeal from this office, 5 Mr. Adkins supplemented his response on behalf of the Commission. 6 In addition to summarizing the facts which culminated in this appeal, Mr. Adkins explains:
After speaking with and meeting with Mr. Konyn, the [Commission] provided him with all information we had in our office. We did not have a copy of the survey performed on Mr. Konyn's property. The maps and elevations are provided by FEMA and coordinated by the Kentucky Division of Water. We did forward the request to the State Division of Water to see if they could assist us in trying to accommodate Mr. Konyn's request.
It was again explained to Mr. Konyn that no such information existed in the [Commission's] office and in an attempt to give additional assistance we setup and conducted a conference call with Mr. Konyn, the City of Madisonville, Mr. Carey Johnson of the KY Division of Water and ourselves on May 4, 2007.
. . .
On May 15, 2007, after working with the State Division of Water and their contractor on the Map Modernization Project, we were able to provide Mr. Konyn a computer disc containing survey data related to the detailed study of the Elk Creek Tributary No. 4. This was information we obtained on the 15th from the contractors ftp site.
[In response to his letter of May 16, 2007, Mr. Konyn] was again advised that such data did not exist in the office of the [Commission] and that the elevation of his house was not determined by the Commission.
The map information is coordinated through and provided by the Kentucky Division of Water, 14 Reilly Road, Frankfort, Kentucky 40601.
. . .
The information requested by Mr. Konyn does not exist in the office of the [Commission], and therefore, cannot be supplied. The only information the [Commission] has are the proposed maps showing the various flood zones and elevations and the flood insurance study. Both of which were provided to this office as part of the Map Modernization Project.
The [Commission] has met with Mr. Konyn on numerous occasions in an attempt to resolve this matter, meeting even as late as Tuesday, May 29, 2007, and it is our understanding that Mr. Konyn finally understood that his requested information was not available in the office of the [Commission].
Based upon the following, this office does not find a violation on the facts presented; neither disputes concerning discrepancies between the records provided and those requested nor questions relative to content or volume of records are justiciable in this forum.
As observed by the Attorney General in 05-ORD-063, this office is "not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." Id. at p. 4, citing 99-ORD-121, p. 17. In other words:
This office has a precise and narrow function in connection with the interpretation and application of the Open Records Act. KRS 61.880(2)(a) requires that when a matter has been properly presented to the Attorney General for review, this office shall review the request and the denial and issue a written decision stating whether the agency violated the provisions of the Open Records Act. The Attorney General's responsibility and obligation, normally, is to determine whether a public agency has properly withheld public records from public inspection and whether a request to inspect public records was properly denied under the terms and provisions of KRS 61.870 to KRS 61.884.
96-ORD-120, p. 3. See also 05-ORD-006; 96-ORD-171; 96-ORD-142. To summarize, the role of the Attorney General in adjudicating a dispute arising under the Open Records Act is narrowly defined by KRS 61.880(2); this office is without authority to deviate from that statutory mandate. Accordingly, our analysis focuses exclusively on whether the Commission has complied with prior decisions of this office applying the Open Records Act.
Early on, this office clarified that "[t]he 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. 7 Accordingly, the Attorney General has consistently held that "requests for information as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080. In addressing this issue, the Attorney General has consistently recognized:
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. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
04-ORD-080, p. 13, citing OAG 87-84. See also OAG 90-19; OAG 89-81; OAG 89-77. Of particular relevance here:
This office has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. See, e.g., OAG 76-375; OAG 79-547; OAG 81-333; OAG 86-51; OAG 90-101; 93-ORD-50. At page 2 of 93-ORD-50, we observed:
[T]he Kentucky Open Records Act was not intended to provide a requester with particular "information," or to require public agencies to compile information, to conform to the parameters of a given request.
02-ORD-165, p. 4. 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. A review of the statutory language upon which these decisions are premised, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records ") (emphasis added), validates this position. In other words, the Commission is not statutorily required to honor a request which is properly characterized as a request for information (such as "what areas have flooded"). 8
As long recognized by the Attorney General, a public agency is not required to honor a request for records which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 99-ORD-198; 98-ORD-200; 91-ORD-17; OAG 87-54; OAG 83-111. It stands to reason that the Commission cannot produce for inspection or copying that which it does not have. 02-ORD-118, p. 3. To clarify, the rights to inspect 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. 9 In addressing the obligations of a public agency when 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 repeatedly 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," with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively so indicating as the Commission did here. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 04-ORD-046, p. 4; 03-ORD-205, p. 3. On multiple occasions, the Attorney General has expressly so held. 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 a public agency denies the existence of requested records, it is "not incumbent on this office to conduct an investigation in order to locate the 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. As previously indicated, the role of the Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(1).
In 1994, the General Assembly recognized an "essential relationship between the intent of [the Open Records Act] and those statutes "dealing with the management of public records, " and "the coordination of strategic planning for computerized information systems in state government" with the enactment of KRS 61.8715. To ensure "the efficient administration of government and to provide accountability of government activities, public agencies are required to maintain their records according to the requirements of these statutes." Id. Since this provision of the Open Records Act took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based upon the nonexistence of the requested records. To satisfy its burden of proof under KRS 61.880(2)(c), a public agency must offer some explanation for the nonexistence of the requested records at a minimum. See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame); 03-ORD-059 (radio run tapes were erased and reused in a manner consistent with applicable records retention schedule and were therefore not available for review); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 98-ORD-47 (audit not in University's custody because it was never reduced to writing); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University). Under circumstances like those presented, further inquiry is not warranted in the absence of contrary evidence. As in the cited decisions, the record is devoid of evidence to raise the issue of good faith; rather, the explanation provided by the Commission on appeal is credible.
Assuming the Commission made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," as the record indicates, the Commission cannot be said to have violated the Act in this regard. 05-ORD-109, p. 3. To the extent Mr. Konyn is questioning the content of the records, such an issue is not justiciable in this forum; the Attorney General has long recognized that "questions relating to the verifiability, authenticity, or validity or records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3 (reporter questioned the validity of invoices produced in response to request; the Attorney General advised that the relief sought was unavailable under the Act). See 05-ORD-008 (questions concerning the value of information contained in records produced for public inspection are not justiciable in Open Records appeal); 04-ORD-032 (recipient of public records questioned the degree of detail and "verifiability" of records produced in response to request; the Attorney General characterized the question as one that did not arise under the Act); 02-ORD-89 (recipient of public records questioned the quality and value of the information contained in those records; the Attorney General refused to consider this issue). As before, this office finds that issues concerning the value of information contained in public records produced for inspection are not justiciable in the context of an Open Records appeal and, therefore, declines to assign error on this basis. If Mr. Konyn has evidence the Commission willfully concealed more accurate or current records, he may wish to consider the options available under KRS 61.991(2)(a); the record on appeal is devoid of such evidence.
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.
Michael Konyn
Derek F. Adkins, DirectorHopkins County Joint Planning CommissionHopkins County Government Center56 North Main StreetMadisonville, KY 42431
Todd P'PoolHopkins County Attorney25 East Center StreetMadisonville, KY 42431
Footnotes
Footnotes
1 To clarify, the Commission was not required to provide Mr. Konyn with a certified copy of the record(s) at issue; a public agency is not statutorily obligated to "certif[y] . . . the appropriate records . . . in such manner that the same may be introduced as evidence in a Court of Law . . . ." Such a requirement does not exist in the Open Records Act. 03-ORD-207, p. 3.
2 Although Mr. Konyn initially filed his request "under the Freedom of Information Act, " as a "public agency" under KRS 61.870(1), the Commission properly treated Mr. Konyn's request as a request for public records <<2> submitted pursuant to the Kentucky Open Records Act and ultimately responded accordingly. In Ferguson v. Alabama Criminal Justice Information Center, 962 F.Supp. 1446, 1447 (M.D. Ala. 1997), the United States District Court conclusively resolved this threshold issue, holding that neither 5 U.S.C. § 552, the Freedom of Information Act, nor 5 U.S.C. § 552(a), the Privacy Act, apply to state agencies. Accordingly, our analysis focuses exclusively on whether the Commission complied with the Kentucky Open Records Act.
3 Pursuant to KRS 61.872(4): "If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. " To the extent the Commission failed to identify the official custodian for the Kentucky Division of Water (unclear if Carey Johnson is) and for the City of Madisonville, the Commission did not fully comply with the express language of this provision.
4 On the same date, Mr. Konyn directed a letter to Carey Johnson, Kentucky Division of Water, in accordance with Mr. Adkins' response; in his opinion, "the "HCJPC has been less than cooperative in this matter and less than knowledgeable."
5 Although this office also issued a notification to Hopkins County Attorney J. Todd P'Pool, he advised that "the Office of the Hopkins County Attorney does not have custody or control of the records requested by Mr. Konyn."
6 By way of background, Mr. Adkins explains that a problem with Mr. Konyn originated when a proposal was made that his property, located at 80 Brown Badgett Loop, "be brought into an AE flood hazard zone with an established base[] flood elevation of 426 feet MSL, as part of the Map Modernization Program." Upon discovering this, Mr. Konyn retained Associated Engineers, Inc. "who determined that the elevation of the first finished floor of his residence was established at 428 MSL."
7 On this issue, the Attorney General has observed:
An open records request should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the request should not require "the specificity of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government."
02-ORD-89, p. 4, citing 95-ORD-49, p. 5 (citation omitted). In the final analysis, this office assumes "a modicum of good faith from both parties to an open records appeal: from the requester in formulating his request, and from the official custodian in providing the records which satisfy the request." Id., citing 96-ORD-223, p. 4 (citation omitted).
8 However, the analysis does not end there. "While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (original emphasis). In keeping with this position, the Attorney General has noted that when a requester is unable to identify the records sought for inspection with sufficient specificity, or wishes to extract information which has not already been compiled, he "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. " 98-ORD-17, p. 10, citing OAG 76-375, p. 3. That being said, the Commission did not violate the Act in denying access to nonexistent records.
9 As consistently emphasized by this office, the Open Records Act does not empower the Attorney General to order the creation of records. See 96-ORD-139; OAG 89-32; OAG 83-111; OAG 80-308; OAG 78-231. In 95-ORD-48, the Attorney General reaffirmed this longstanding principle in light of recent amendments to the Open Records Act, expressly declining "the invitation to invade the prerogative of public agencies in determining, 'in accordance with standards, rules and regulations prescribed by the Department for Libraries and Archives,' what records they must create. KRS 171.640." Thus, our office has affirmed the principles articulated in OAG 78-231 and its progeny relative to records creation, concluding that the Attorney General "cannot order an agency to create records, or declare its failure to do so a subversion of the intent of the Open Records Act. " 96-ORD-139, p. 2. See 98-ORD-5. As a corollary to this proposition, the Attorney General has often noted that a public agency cannot afford a requester access to nonexistent records.