Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Boone County Fiscal Court violated the Kentucky Open Records Act in denying Stephen Mann's written request for various records and information relating to "Christine Heckel v. Boone County (Kentucky) Sheriff, Helmig" and Equal Employment Opportunity Commission Charge No. 47400600020. Insofar as the Fiscal Court failed to advise Mr. Mann that certain records are presumably in the custody of the Boone County Sheriff's Department, and provide him with contact information for that agency, the Fiscal Court violated KRS 61.872(4); however, the Fiscal Court is not expected to produce for inspection or copying nonexistent records or those which the agency does not possess. In accordance with
Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), and prior decisions of this office, including 07-ORD-188 and 07-ORD-190, this office must affirm the Fiscal Court's denial of Mr. Mann's request.
By letter directed to the Boone County Fiscal Court Clerk and Public Information Officer on April 29, 2008, Mr. Mann requested the following records 1 concerning the above-referenced matter:
1. The [c]omplete (entire) Equal Employment Opportunity Commission (EEOC) [i]nvestigative records, to include EEOC finding's [sic], recommendation and TOTAL monetary award [;]
2. The year, make, model and cost of the Charging Party NEW vehicle and the amount of tax paid on same[;]
3. The schedule/agenda mandatory requirement issued by the EEOC for all Boone County [S]heriff['s] [D]epartment employees. And, the cost of this mandatory training and how is it being conducted [sic][;]
4. Any and All records relating to EEOC Charge No. 474200600020.
In a timely written response, Blair G. Schroeder, Fiscal Court Clerk, denied Mr. Mann's request, advising him that "the Boone County Fiscal Court does not have any files or records pertaining to the documents you have requested. All files and records regarding the case and those parties involved with this case have already been disclosed to you." 2 Mr. Mann subsequently initiated this appeal. Upon receiving notification of Mr. Mann's appeal from this office, Boone County Attorney Robert D. Neace responded on behalf of the Fiscal Court, reiterating Mr. Schroeder's basis for denial. 3 Citing prior decisions of this office, Mr. Neace relies upon the "established princip[le] in Kentucky Open Records decisions that a public agency cannot afford a requester access to records which do not exist. . . . When a document is requested that does not exist, a public agency 'discharges its duty under the Open Records Act by affirmatively so stating.'" In addition, Mr. Neace observes that prior decisions have recognized that "a public agency is not required to manufacture or create records to satisfy a request." Because the Open Records Custodian advised Mr. Mann that the requested records do not exist, Mr. Neace believes the Fiscal Court 'has discharged its duties under the Open Records Act and therefore is not required to take any further action." With the exception of advising Mr. Mann whether any such records would be in the custody of another local agency, such as the Sheriff's Department, in compliance with KRS 61.872(4), this office agrees that nothing else is required in the absence of a prima facie showing that additional records exist in the custody of the Fiscal Court aside from those already provided.
As long recognized by the Attorney General, a public agency cannot afford a requester access to nonexistent records or those which the agency does not possess. 4 07-ORD-190, p. 6; 06-ORD-040. To clarify, the right to inspect attaches only if the records being sought 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. 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 a public agency discharges its duty under the Open Records Act by affirmatively indicating that no such records exist (or are in the possession of the agency) as the Fiscal Court has twice asserted here. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 99-ORD-98. Under circumstances like those presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2; 04-ORD-205; 94-ORD-140. To reiterate, our scope of review is expressly limited by the language of KRS 61.880(2)(a).
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records, 5 the Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). 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 open to public inspection. 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 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) ; 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 94-ORD-140 (records of subject investigation not in sheriff's custody because sheriff did not conduct the investigation). When, as in this case, a public agency denies that any such records exist, and the record on appeal does not refute that contention, further inquiry is not warranted. 6 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83.
Both initially, and in responding to Mr. Mann's appeal, the Fiscal Court asserted that no documents exist which are responsive to his current request aside from those already provided. The Fiscal Court now finds itself in the position of having to "prove a negative" in order to conclusively refute Mr. Mann's claim that additional records exist. 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.
For these reasons, the Court determined "that before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist." 7
In a series of decisions issued since Bowling, this office has been obliged to affirm public agency denials of requests based on the nonexistence of responsive records in the absence of a prima facie showing that the records sought did in fact exist. See, e.g., 06-ORD-042; 06-ORD-223; 07-ORD-045; 07-ORD-085; 07-ORD-188; 07-ORD-190. Because the instant appeal presents no reason to depart from governing precedents, this office must reach the same conclusion here.
In our view, the analysis contained in 07-ORD-188 and 07-ORD-190 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. In the absence of the requisite prima facie showing, this office is compelled to affirm the Fiscal Court's denial of Mr. Mann's request in accordance with
Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), and prior decisions of this office such as 07-ORD-188 and 07-ORD-190. To hold otherwise would result in the City "essentially hav[ing] to prove a negative" in order to refute a claim that such records exist. 07-ORD-190, p. 7. As the Attorney General has long recognized, this office cannot "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office" under the Act. OAG 89-81, p. 3.
Although the Fiscal Court apparently does not possess any records which are responsive to Mr. Mann's current request, and therefore cannot be said to have violated the Act in failing to produce such records, it stands to reason that that the Boone County Sheriff's Department (Respondent in EEOC Charge No. 474200600020) may have records concerning the EEOC Charge that was brought against it and the resulting settlement. More specifically, the Sheriff's Department might have records concerning the vehicle that was provided to Ms. Heckel under the terms of the Mediation Settlement Agreement, documentation establishing that EEOC training has been provided to employees of the Sheriff's Department as required, etc. 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. " Insofar as the Fiscal Court failed to notify Mr. Mann of the agency which presumably maintains any records which are potentially responsive to his request, and furnish him with its contact information, the Fiscal Court's initial and supplemental responses were deficient.
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 the "Mediation Settlement Agreement" between Sheriff Michael A. Helmig and Christine R. Heckel, a copy of which the Fiscal Court provided to Mr. Mann after this office issued 08-ORD-068 (holding that Fiscal Court violated the Act in denying access to settlement agreement, and "any and all records" pertaining to same, on the basis of KRS 61.878(1)(a) notwithstanding a confidentiality agreement), the Sheriff's Department agreed, in relevant part, to the following:
7A. Respondent agrees to replace Charging Party's current car with a new model.
7B. Respondent agrees to give Charging Party a merit increase of $ 1,000 for 2006 within 30 days of the signing of this Agreement and agrees to give her a double merit increase ($ 2,000) in January 2007 for the year 2007.
7C. Respondent agrees to pay Charging Party's co-pays for the period 6/05 thru 01/06, the amount not to exceed $ 500 upon submission of appropriate doctor's invoices.
. . .
7E. Respondent agrees to provide EEO training to all employees and will submit the agenda and list of attendees to the EEOC.
2 By letter dated April 11, 2008, Mr. Schroeder had advised Mr. Mann that he was enclosing "any and all documents regarding the settlement from Christine Heckel v. Boone County Sheriff" in compliance with our decision; however, the Fiscal Court was unable to provide him with some of the related information and records in dispute because "there was no settlement paid from the Boone Fiscal Court general fund, or any payments made from any [i]nsurance [c]ompany" so the agency had "no checks to reference or copies of checks to be issued."
3 Because the inability of the Fiscal Court to produce the specific records being sought in the request which culminated in this appeal (which is related but is not identical to his previous request) "due to their apparent nonexistence is tantamount to a partial denial," it was incumbent on the Fiscal Court to so indicate in "clear and direct terms." 02-ORD-145, p. 3.
4 To the extent Mr. Mann requested information (Item 2 and part of Item 3), rather than public records, he did not properly frame his request. 08-ORD-068, p. 7; 07-ORD-042, pp. 3-5.
5 See KRS 61.8715.
6 Although the Fiscal Court does not identify the steps taken, if any, to locate potentially responsive documents, and this office is therefore precluded from assessing the adequacy of the search, the record on appeal is devoid of any objective basis to question whether a good faith effort was made.
7 Black's Law Dictionary, 1071 (5th ed. 1979), defines prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."