Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the City of Jeffersonville violated the Open Records Act in responding to one of five requests for public records submitted by Leonard Wilson on August 9, 2013.
By letter dated August 13, 2013, Jeffersonville City Clerk Stacey C. Honeycutt honored three of Mr. Wilson's requests by providing him with responsive records. In response to numbered request "3" for documentary proof of a named city employee's familial relationship to members of the city commission and the mayor, Ms. Honeycutt advised Mr. Wilson that the employee "is not related to any of the four commissioners or the mayor." In response to numbered request "5" for a county building permit "for the metal building," Ms. Honeycutt advised Mr. Wilson that "per Randy Haddix 1 we do not have to have a Montgomery County Building Permit only from the state." She noted that the city had previously furnished Mr. Wilson with a copy of the state permit. Shortly thereafter, Mr. Wilson initiated this appeal asserting that the city provided him with no documentation responsive to these requests.
The City of Jeffersonville violated KRS 61.880(1) by failing to advise Mr. Wilson that it maintains no documentary proof that the named employee is not related to the city commissioners or the mayor. The city cannot produce a record that does not exist, but is obligated in such instances to expressly so advise the requester. 01-ORD-38 (agency's inability to produce contract due to its nonexistence was tantamount to a denial of the request "and it was incumbent on the agency to so state in clear and direct terms"). In those cases where the record is presumed to exist based on legal authority mandating its creation or circumstances importing its existence, but the agency is unable to produce it, the agency is obligated to provide a written explanation for its nonexistence. Eplion v. Burchett, 354 S.W.3d 598 (Ky. App. 2011); 11-ORD-074; 12-ORD-192. Mr. Wilson cites no such legal authority or circumstance suggesting the existence of documentary proof of the named employee's familial relationship to the commissioners and/or the mayor, and we can locate and/or discern none. Although the city's code of ethics prohibits nepotism, it does not require employees to file a statement of familial relationship. Compare, Code of Ethics Section IV, requiring submission of a financial disclosure statement. To the extent the city failed to state in clear and direct terms that no documentary proof of the named employee's familial relationship to the commission members and mayor existed, its response was deficient and constituted a violation of KRS 61.880(1). Mr. Wilson was not, however, entitled to an explanation for the nonexistence of the requested record because the record's existence could not be presumed based on legal authority or circumstance.
The city did not violate the Open Records Act in denying the existence of a county building permit for "the metal building" and explaining that the county's code enforcement officer affirmed that none was required. We are not prepared, in the context of an open records appeal and absent citation to legal authority suggesting otherwise, to question the authority of the official charged with enforcement of the county building code and his conclusion that no county building permit was required for "the metal building." Consistent with the principles set forth above, and bearing in mind that Mr. Wilson previously obtained from the city the only permit apparently required, we find no violation of the Act with respect to numbered request "5."
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:
Leonard WilsonStacey C. HoneycuttLeah Hawkins
Footnotes
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