Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of Sheperdsville violated the Open Records Act in the disposition of Regina Rummage's September 9 and September 15 requests for various records and information relating to employees of the City and "the Salt River Interceptor Line, also known as the Capital Projects." The City issued timely written responses in both instances and was not required to compile information or create a record(s) in order to comply with either written request nor was the City expected to produce nonexistent records for inspection or copying. However, the City violated the Act in failing to either provide Ms. Rummage with access to any existing nonexempt documents responsive to her written requests within three business days per KRS 61.880(1) or properly invoke KRS 61.872(5) by citing that provision and providing a detailed explanation of the cause for delay as well as the "place, time, and earliest date on which" the documents would be available for inspection.
By letter dated September 9, 2010, Ms. Rummage asked for "a complete list of names of all City of Sheperdsville employees, their titles and their current rate of pay, including Maintenance, Sewer, Police, Fire, Office Staff, Capital Projects, Mayor and any appointed officers." Ms. Rummage also requested "the number of people hired by the City of Sheperdsville as of January 1, 2007 to today [sic] September 9, 2010 and the number of people hired as of January 1, 2007 that are local residents (live in Sheperdsville or Bullitt County)" as well as the number of people hired between that date and the present who are not local residents. With regard to the "Salt River Interceptor Line," Ms. Rummage requested "a copy of the federal or government grant given to the City of Sheperdsville," "a copy of any engineers [sic] estimated bid or a cost figure to finish the Salt River Interceptor Line, also known as the Capital Projects," "a copy of any engineers [sic] estimate or cost figure to repair or fix the Salt River Interceptor Line or Capital Projects line," and "the name and phone number of the government representative appointed to oversee the Capital Projects, also known as the Salt River Interceptor Line."
In a timely written response, then City Attorney Jennifer Hatfield Barbagallo advised Ms. Rummage that the City could "respond to Paragraphs 1, 2, 3 within forty[-]five days from the date of this correspondence [September 13]." Ms. Barbagallo further advised, in reference to "Paragraphs 4 and 5," that such information "has currently not been prepared as there is an ongoing evaluation of the Interceptor Line." In addressing "Paragraph 6," Ms. Barbagallo indicated that "no specific government representative has been appointed to oversee the Salt River Interceptor Line. Responsibility for that line falls under a number of different individuals depending on the specific task required. In the event that you require a more specific response, please advise what specific task you are referencing[.]"
By four separate letters dated September 15, 2010, Ms. Rummage essentially revised her previous request, asking for "copies of the city's payroll records for all city employees, including Sewer, Maintenance, Capital Projects, Office Staff, Mayor, Fire, Police and any appointed officers or personnel," "a copy of records showing the expense cost to date of the Salt River Interceptor Line, also known as Capital Projects," "copies of any documents showing the names and hire dates of all city employees, " and "copies of any documents or records showing the estimated cost to finish the Salt River Interceptor Line, also known as Capital Projects." 1 In a letter dated September 16, Ms. Barbagallo advised Ms. Rummage that the City could "respond to your requests for current payroll records, documents showing the names and hire dates of all city employees, and records showing the expense costs to date of the Salt River Interceptor Line, also known as Capital Projects, within sixty days from the date of this correspondence." Ms. Barbagallo further indicated, with regard to records documenting the estimated costs to finish the Salt River Interceptor Line, that such information "has currently not been prepared, and is therefore unavailable, as there is an ongoing evaluation of the Interceptor Line[.]" This appeal followed.
Upon receiving notification of Ms. Rummage's appeal from this office, James D. Winchell, Ms. Barbagallo's successor, responded on behalf of the City. Addressing the requests of September 9 and September 15 as one, Mr. Winchell reiterated that no records containing the "estimated cost to finish" the Line, "any engineers [sic] estimated bid or cost figure to finish" the Line, or "any engineers [sic] estimate or cost figure to repair or fix" the Line currently exist as "the engineers are currently reevaluating the cost to complete this and have not yet submitted estimates. " Mr. Winchell further indicated that the "City did not receive a grant and borrowed money from Kentucky Rural Water for this project." 2 Further, "[n]o government representative has been appointed to oversee the Salt River Interceptor Line. Responsibility for that line falls under a number of different individuals depending on the specific task." Having confirmed that no documents responsive to any of those requests currently exist, Mr. Winchell advised that the remaining items, namely a "complete list of all [City] employees," "the number of people hired" in the specified time frame and those who are not local residents, copies of the City's "current payroll records for all city employees," and copies of "any documents showing the names and hire dates of all city employees, " will "take time to prepare." According to Mr. Winchell, "no comprehensive list with all of this information" 3 exists and the City Clerk "has to compile this data for Ms. Rummage from several different and voluminous records. Unfortunately Ms. Rummage's requests were made when the city clerk and staff were fully occupied with getting property tax bills sent out and are now dealing with the resulting calls regarding the bills and processing payments." Mr. Winchell noted that the City "offered to have these records to Ms. Rummage within 45 to 60 days of her request" and "expects to have the information and all documents available to Ms. Rummage on or before October 15, 2010."
The City was not statutorily required to create a record or compile a list in order to satisfy Ms. Rummage's improperly framed September 9 request (although Ms. Rummage reframed the majority of the request in her September 15 letters). Nor could the agency produce nonexistent records for inspection or copying in response to either of the requests. Accordingly, this office has no basis upon which to find that a substantive violation of the Act occurred. The City partially complied with KRS 61.880(1) in both instances by issuing a timely written response, but was also required to specify all of the records which did not exist in the initial response and provide timely access to existing responsive documents or, in the alternative, cite KRS 61.872(5) and provide a detailed explanation of the cause for delay in producing any existing records. The City's responses were procedurally deficient insofar as it failed to discharge these duties.
As a public agency, the City is obligated to comply with the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) contains the guidelines for responding to requests made thereunder. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.
In applying this provision, the Attorney General has consistently observed:
"The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1) . Contrary to [the City's] apparent belief, the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
Additionally, we note that in OAG 92-117 . . . this office made abundantly clear that the Act "normally requires the agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request. " OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented." OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 82-300, p. 3; see also 93-ORD-134 and authorities cited therein.
01-ORD-140, pp. 3-4 (emphasis added). As in 01-ORD-140, this office must conclude that in failing to produce any existing records that were potentially responsive for Ms. Rummage's inspection within three business days, the City violated KRS 61.880(1) as it did not invoke KRS 61.872(5). In the absence of a legitimate detailed explanation of the cause for the delay in providing access, the Attorney General must conclude that Ms. Rummage did not receive "timely access" to the records.
Noticeably absent from the City's September 13 and September 16 responses is any reference to KRS 61.872(5); also lacking is the required explanation of the cause for delay. On appeal the City does not address either deficiency, relying instead on the apparently inconvenient timing of the requests. Although the City responded in a timely manner on both occasions, the City Attorney initially advised that records containing some of the requested information (payroll, names and hire dates) would be available within 45 days only to subsequently indicate (three days later) that said records, in addition to records documenting "the expense costs to date" for the Salt River Interceptor Line, would be available within sixty days. Such estimates have been deemed insufficient for purposes of complying with KRS 61.872(5), requiring the "place, time, and earliest date" when records will be available for inspection. 08-ORD-006, p. 4 (City Clerk's response advising that it would be "a couple of weeks" before she could "get the copies together" without further explanation violated KRS 61.872(5)). See 07-ORD-158 (Finance and Administration Cabinet's response that it was "in the process of filling" the request and expected to fill it "within the next two weeks" did not comply with KRS 61.872(5)); 01-ORD-38 ("KRS 61.872(5) envisions designation of the place, time, and earliest date certain, not a projected or speculative date, when the records will be available for inspection. ").
While a reasonable extension of time may have been justified on the facts presented, it was incumbent on the City, as it is on any public agency, "to make proper provision for the uninterrupted processing of open records requests." 01-ORD-140, p. 6. A public agency response advising that it cannot immediately comply with a request "because of the press of business [, as the City did belatedly on appeal, is] insufficient to meet the requirements of" the Open Records Act. 96-ORD-238, p. 3. Rather, "[t]he duty to respond to an open records request, and to afford the requester timely access to the records identified in this request, is as much a public servant's legal duty as any other essential function." 01-ORD-21, p. 4. Any other interpretation of the Act would be "clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the [Act],"
Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, Inc., Ky., 834 S.W.2d 681, 682 (1992), and the recognition that "the value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, above, at 1041. Neither the initial nor the supplemental responses of the City contains the specificity envisioned by KRS 61.872(5); accordingly, the City violated the Act from a procedural standpoint. However, the City was not statutorily required to create a record or compile a list in order to satisfy Ms. Rummage's request(s) and, to its credit, apparently did so anyway.
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. For this reason, 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. In addressing this issue, the Attorney General has consistently recognized:
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. Of particular relevance, 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." 02-ORD-165, p. 4. See, e.g., OAG 76-375. Said another way, "the 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." 93-ORD-50, p. 2; see 02-ORD-165.
Simply put, "'what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it.'" 02-ORD-165, p. 5, quoting 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 City is not statutorily required to honor a request which is properly characterized as a request for information such as Ms. Rummage's September 9 request. 4 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 adequate specificity, or wishes to extract information which has not already been compiled, as in this case, 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. The City was required to do nothing more with regard to Ms. Rummage's initial request. In any event, she remedied this error in submitting the September 15 letters asking for documents containing the specified information (with the exception of the "federal or government grant" and the name and contact information for the "government representative appointed to oversee" the project).
On appeal Mr. Winchell advised that some of the records being sought do not currently exist. As the Attorney General has consistently recognized, a public agency cannot afford a requester access to nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. 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. 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 as the City did here with regard to records documenting the estimated cost of repairing or finishing the Line. The Attorney General has expressly so held. 04-ORD-205, p. 4; 99-ORD-98. Under the circumstances 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. KRS 61.880(2)(a) narrowly defines our scope of review. This office is "not empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." 08-ORD-206, p. 1.
In responding to Ms. Rummage's appeal, the City affirmatively indicated that no such records exist and explained why. The City now finds itself in the position of having to "prove a negative" in order to conclusively refute Ms. Rummage's apparent belief that such records exist. Addressing this dilemma, in
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), the Kentucky Supreme Court observed "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." In a series of decisions issued since Bowling, this office has been obliged to affirm public agency denials of requests based upon the nonexistence of responsive documents in the absence of a prima facie showing that documents being sought existed in the possession of the agency. See, e.g., 06-ORD-042; 08-ORD-189.
The analysis contained in 07-ORD-188 and 07-ORD-190 is controlling on this issue; a copy of each decision is attached hereto and incorporated by reference. In the absence of the requisite prima facie showing, the City's response must be affirmed in this regard under Bowling and prior decisions of this office. To hold otherwise would result in the City "essentially hav[ing] to prove a negative." 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." OAG 89-81, p. 3. 5 Based upon the foregoing, this office finds no substantive error in the City's ultimate disposition of Ms. Rummage's request(s) but finds that it did violate the Act from a procedural standpoint in failing to afford her "timely access" to any existing responsive documents.
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.
Regina G. RummageJames D. WinchellJennifer Hatfield Barbagallo
Footnotes
Footnotes
1 Because Ms. Rummage resides in Sheperdsville, the City may require her to inspect any responsive documents prior to providing copies per KRS 61.872(3).
2 Because the City was unable to produce the requested grant due to its apparent nonexistence, the City's initial response(s) should have advised Ms. Rummage of that fact as its response(s) was "tantamount to a denial and . . . it [was] incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9. In other words, if a record "of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4; 09-ORD-019.
3 While this office has no reason to question the veracity of the City, and this assertion seems entirely credible as to some of the information requested, it seems rather unlikely that current payroll records for City employees, which are presumably maintained in the normal course of business and which may contain responsive information aside from also being directly responsive to one of the requests, would not be readily accessible.
4 The City did not raise this argument in responding to Ms. Rummage's initial request and, therefore, arguably waived it.
5 In other words, "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." 04-ORD-216, p. 3.