Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Oldham County Planning and Development Services violated the Kentucky Open Records Act in the disposition of Judy L. Ponder's July 5, 2012, request for a copy of "[a]ll training records for all BOAA members the past 4 years, including any signed acknowledgements of trainees and training sponsors" and the "training pkg. that [Planning and Development Services Director Jim Urban and his Deputy] Brian Davis handed out at the June 21, 2012, BOAA hearing (at least but not limited [to] 2 [DVDs] and 2 [meeting] minutes with tabs[)]." In a timely written response, Director Jim Urban advised Ms. Ponder that said records were available and could be "picked up at the front desk during normal office hours of 8:00 a.m.- 4:30 p.m., Monday thru Friday." Ms. Ponder subsequently picked up the records to which Planning and Development afforded her access. Having determined that no written statements were included among the records provided, Ms. Ponder initiated this appeal, quoting relevant portions of KRS 147A.027(1), (2), (5), and (6), relating to continuing education requirements for board of adjustment members. Ms. Ponder noted that Mr. Urban "did not provide any written statements acknowledging individual training signed by Board members, any written statements signed by any training sponsors verifying the training claimed to have been received, [or] any records showing the minimum 8 hours every two years of training for [one member]." The "unsigned logs" provided, she argued, "do not meet the statutory minimum because the logs do not contain any trainee or sponsors' names, signatures, location & sponsors' names -- required in the written statements." Because Mr. Urban did not "admit or deny" these records exist nor did he give any explanation for the delay in providing them per KRS 61.872(5), Ms. Ponder argued that he violated the Open Records Act "and/or KRS 171.640," which is not a provision thereof. Upon receiving notification of Ms. Ponder's appeal from this office, Mr. Urban supplemented his original response, confirming that "[a]ll requested records in possession of this office were delivered as part of my response." His error, Mr. Urban explained, was in failing to clarify that "signed acknowledgements of trainees and training sponsors" do not exist. Mr. Urban further advised that all training is currently "done 'in house' either by videos, staff or other presenters so that signed statements are unnecessary as attendance is kept in the logs which were provided to Ms. Ponder."
Planning and Development is not required to produce nonexistent records nor is the agency expected to "prove a negative" in order to refute a claim that certain records exist under the rule announced in
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005); however, the inability of the agency to produce the statutorily required "written statements" due to their apparent nonexistence 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; 09-ORD-019. Insofar as Planning and Development initially failed to affirmatively indicate whether any such records existed, it failed to fully discharge its duty under the Open Records Act; however, the agency has done so now and cannot produce that which it does not have. Although Ms. Ponder's point regarding compliance with KRS 147A.027 is well-taken, and the logs provided appear to lack required information, this office is not empowered to order a public agency to create records "or declare its failure to do so a subversion of the intent of the Open Records Act. " 95-ORD-48, p. 2. "[O]bjections to alleged inaccuracies and omissions in the records disclosed" cannot be resolved in the context of an Open Records Appeal. 10-ORD-178, p. 2; 09-ORD-144; 10-ORD-195.
As the Attorney General has consistently recognized, a public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Rather, 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. However, in addressing the obligations of a public agency when denying access to public records for this reason, the Attorney General has observed that a public 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 a public 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 (emphasis added); 09-ORD-145. In short, "[i]f a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4.
This office has consistently recognized that a response by a public agency 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 in affirmatively so indicating. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 03-ORD-205, p. 3. The Attorney General has expressly so held on many occasions. 04-ORD-205, p. 4; see 99-ORD-98; 03-ORD-205; 09-ORD-145. It was "therefore incumbent on the [agency] to ascertain whether records exist[ed] that [were] responsive to M[s. Ponder's]] request, to promptly advise [her] of [its] findings, and to release to [her] all existing [nonexempt] records identified in [her] request." 03-ORD-207, p. 3. Insofar as Planning and Development initially failed to affirmatively indicate that no "written statements" existed, the agency violated the Act. See 09-ORD-145 (copy enclosed); 10-ORD-137. However, Planning and Development cannot be said to have violated the Open Records Act in denying access to nonexistent records.
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, 1 and the Attorney General has applied a high standard of review to denials based on the nonexistence of records ever since KRS 61.8715 was enacted in 1994, 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 disputes arising under the Open Records Act are therefore generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record (s), and, if so, whether the record(s) is open to public inspection. Simply put, Kentucky's Open Records Act applies to records that currently exist, and that are in the possession or control of the public agency to which the request is directed. See 00-ORD-120. 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, nor is this office "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. Ponder's appeal, Planning and Development affirmatively indicated that no such records exist and explained the reason that no such records were created, namely that all continuing education/ training is currently "done 'in house' either by videos, staff or other presenters" which, in the agency's view, apparently renders the written statements otherwise required unnecessary. The agency now finds itself in the position of having to "prove a negative" in order to conclusively refute Ms. Ponder's belief that such records not only should exist, but actually do. Addressing this dilemma, in Bowling at 340-341, 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 12-ORD-110, a copy of which is attached hereto and incorporated by reference, is controlling on this issue.
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. To the extent Ms. Ponder is questioning the volume, content or value of the records produced, such an issue is not justiciable in this forum; rather, "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." 05-ORD-236, p. 3 (reporter questioned the validity of invoices produced in response to request and the Attorney General advised that the relief sought was unavailable under the Act); see 02-ORD-89; 04-ORD-032; 09-ORD-101; 12-ORD-042. However, this office recently noted that "a record's existence can be presumed" at the administrative level "where statutory authority for its existence has been cited or can be located." In order to ensure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective," Bowling at 341, this office further held that "the existence of a statute, regulation, or case law directing the creation of the requested record" creates a rebuttable presumption of the record's existence, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4.
Planning and Development has not denied that KRS 147A.027 applies here or claimed that logs provided to Ms. Ponder constitute the "written statements" required thereunder, asserting instead that written statements are unnecessary because all training has been conducted internally. No such exception appears to exist in that statute; however, the proper interpretation of KRS 147A.027 or a determination of what exactly is required to achieve full compliance therewith is beyond our purview. "The Attorney General is not empowered to ? resolve non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17; see 12-ORD-110 ("whether the agency followed the required procedures or complied with governing law(s) aside from the Open Records Act is not a question that can be resolved here")(footnotes omitted).
The current dispute fundamentally amounts to "a 'records creation,' as opposed to a 'records access,' issue." 99-ORD-140, p. 5. As the Attorney General has long recognized:
It is abundantly clear that the shared intent contemplated by the legislature in enacting KRS 61.8715 is confined to records management and maintenance. There is no reference in [KRS 61.8715, or anywhere else in the Open Records Act] to records creation. We decline 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. We therefore affirm those principles articulated in OAG 78-231 and subsequent opinions relative to records creation, and conclude that, KRS 61.8715 notwithstanding, the Attorney General is not empowered to order an agency to create records, or to declare its failure to do so a subversion of the intent of the Open Records Act.
95-ORD-48, p. 2; see 97-ORD-31. Nor, this office "is obliged to add," is the Attorney General empowered to declare that a public agency's "failure to create a record constitutes a violation of the Open Records Act. " 99-ORD-140, pp. 5-6. Accordingly, this office has no basis upon which to find that Planning and Development violated the Open Records Act with the exception of the deficiency in the agency's initial response noted above.
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.
Distributed to:
Judy L. PonderJim P. UrbanJohn K. Carter
Footnotes
Footnotes
1 See KRS 61.8715.