Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Governor violated the Open Records Act in the disposition of Uriah Marquis Pasha's August 4, 2009, 1 request for "[a] copy of the letter Uriah Pasha ? mailed to you July 27, 2009, and your response thereto." For the reasons that follow, we find that the Governor's Office did not substantively violate the Act.
Michael T. Alexander, Deputy General Counsel, responded on behalf of the Office of the Governor on August 13, 2009, as follows:
[Y]ou have asked to be provided a copy of letters [sic] you allegedly mailed to Governor Steven L. Beshear on July 27, 2009 and any responses thereto.
I have enclosed herewith a copy of a letter you sent to Governor Beshear dated July 21, 2009. There is no response to this letter. Accordingly, there are no additional documents in the Office of the Governor responsive to your request.
Mr. Pasha initiated an open records appeal on August 19, 2009, stating:
I caused to be mailed the attached Open Records Request and a $ 2.00 check to the Governor's Office August 4, 2009.
The Governor's Office has not responded 2 and taken my check as well.
In responding to the appeal, Mr. Alexander provided a copy of the agency's August 13 letter and reiterated that there were no other documents in the Office of the Governor responsive to Mr. Pasha's request.
In additional correspondence, Mr. Pasha claims that the Office of the Governor is "attempting to substitute" his July 21 letter for the requested July 27 letter. Since the record lacks sufficient evidence, we cannot determine whether the letter dated July 21 was the same one purportedly mailed on July 27, or whether any other letter from Mr. Pasha was ever received by the Office of the Governor. The agency claims that the July 21 letter is the only responsive record it possesses.
We find no violation of the Open Records Act. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not the Attorney General's duty to investigate in order to locate documents which the public agency states it does not possess.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by explaining why the agency does not possess the record, we do not believe that this appeal warrants additional inquiries. "[I]t is not, in general, within our statutory charge to resolve questions of fact or ? otherwise [to] act as a trier of fact." 09-ORD-170, p. 4. In this case, since Mr. Pasha has produced no affirmative evidence, beyond mere assertions, that the Governor's Office possesses such records as he has requested, we do not have a sufficient basis on which to dispute the agency's representation that no such records exist. Cf. Bowling v. Lexington-Fayette Urban County Gov't, 172 S.W.2d 333, 341 n.4 (Ky. 2005) (complaining party has the burden of production in litigation over the existence of a public record). Accordingly, we find that the Office of the Governor did not violate the Open Records Act in its disposition of Mr. Pasha's request.
As to the allegation that the Governor's Office kept Mr. Pasha's check for $ 2.00, while we do not have sufficient information in the record to determine exactly what transpired, it appears that the Governor's Office provided copies of two (2) pages to Mr. Pasha. It has long been the position of the Attorney General that a "reasonable fee" for copies of public records under KRS 61.874(3) is ten cents per page unless the public agency can substantiate that its actual costs of reproduction exceed that amount. See, e.g., 08-ORD-171; 08-ORD-006; 03-ORD-224; 01-ORD-136 (citing Friend v. Rees, 696 S.W.2d 325 (Ky.App. 1985)). To the extent that funds in excess of 20 cents were received from Mr. Pasha, therefore, the balance should have been returned to him.
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 proceedings.
Footnotes
Footnotes
1 Although Mr. Pasha's request bears the date July 27, 2009, the stamped date on the copy this office received from the Office of the Governor reflects that it was received on August 11, 2009.
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2 Mr. Alexander's letter, although timely dispatched, evidently reached Mr. Pasha after he had initiated this appeal.