Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Transportation Cabinet violated the Open Records Act in the disposition of Tim Fletcher's request for a copy of:
. the permission granted for a road access (to include who approved the access) of US 460 approximately 1/2 mile west of US 23 in Staffordsville, Kentucky (approved for Bob Hutchison). Second request with additional information (OR 09-0505);
. any denials for access at this same location for a road off US 460 in the same location as above to include why access was not granted;
. all attachments to the application and permit, including the "noted modifications" noted in the "Brief description of work to be done," area map photo, TC 99-21, Encroachment Permit General Notes and Specs, and Applicants' Plans;
. the members who were sitting on the Kentucky Transportation Committee at this time.
For the reasons that follow, we find that in the absence of a prima facie showing by Mr. Fletcher that responsive records exist that have not been disclosed to him, the Cabinet properly disposed of his request by furnishing him with copies of all such records in its custody and thereafter notifying him that it maintains no additional records. Because "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act," we do not address Mr. Fletcher's objections to omissions and discrepancies in the records released to him. 04-ORD-216, p. 3; 05-ORD-236; 06-ORD-098.
In his letter of appeal, Mr. Fletcher complains that information is omitted from the encroachment permit released to him, that the permit inspection status report "is blank, " and that he received only three of the six pages of the encroachment permit general notes and specifications form. The Cabinet responds that Mr. Fletcher has received "every document in its possession," explaining that "no denials for access at this location exist," that there is no "documentation listing members sitting on a KYTC committee concerning this permit," that there is no encroachment permit general notes and specification form because that form "pertains to sidewalk, shoulder, and fence specifications" and is therefore not a part of the permit at issue, and that the status form released to him is blank "because the permit has not been inspected for final release" and has not been "filled out." With these explanatory remarks, we find that the Cabinet has discharged its obligations under the Open Records Act.
We find no violation of the Act in the Cabinet's denial of Mr. Fletcher's request for additional records. The Cabinet offers plausible explanations for the nonexistence of any other responsive records. In supplemental correspondence, Mr. Fletcher alleges that an individual identified as Jimmy Franklin was denied access "off US Highway 460, in Staffordsville, KY,...prov[ing] that the Cabinet did not send information concerning [his] open records request...." He does not, however, "make a prima facie showing that such records exist," as required by the Kentucky Supreme Court in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005).
In 07-ORD-188, the Attorney General applied the Court's analysis in Bowling to an appeal arising from facts similar to the facts before us. A copy of 07-ORD-188 is attached hereto and incorporated by reference. Here, as in 07-ORD-188, we find that in the absence of a prima facie showing by Mr. Fletcher that additional responsive records exist, we must affirm the Transportation Cabinet's denial of his request based on the nonexistence of the records sought.
Turning to the second issue on appeal, we note that Mr. Fletcher objects to certain omissions and discrepancies in the records released to him. It is the position of this office that disputes involving discrepancies in records produced for inspection are, in general, not capable of resolution in an open records appeal. For example, in 04-ORD-213, a requester questioned the content of invoices produced in response to a request, and the Attorney General held that the relief sought was unavailable under the Act. See also, 02-ORD-89 (recipient of public records questioned quality and value of the information those records contained and Attorney General refused to consider this issue); 04-ORD-032 (recipient of public records questioned the degree of detail and "verifiability" of records produced and Attorney General characterized this question as one not arising under the Open Records Act) ; 05-ORD-008 (questions concerning the value of information contained in records produced under the Act are not justiciable in an open records appeal); 06-ORD-098 (Attorney General refuses to address allegations of discrepancies in records produced pursuant to KRS 61.870 et seq. ) Here, as in the referenced decisions, we assign no error for omissions, as opposed to unexplained redactions, in the records the Cabinet provided to Mr. Fletcher. Simply put, the Attorney General's Office is not the appropriate forum for resolution of such issues. Compare, 07-ORD-188, pg. 6, note 8 relative to "willful concealment or destruction of public records. " We respectfully decline to consider this issue.
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.
Tim FletcherAnn StanselJ. Todd Ship