Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Noel Mark Botts initiated this appeal challenging the disposition by the Scott County Property Valuation Administrator (PVA) of his May 27, 2014, request for "[c]opies of tax assessments of all commercial property in Scott County, Kentucky for 2010-2014" and "[c]opies of all documents showing how the assessments listed in Request 1 above were calculated. " By e-mail dated June 4, 2014, 1 Scott County PVA Tim Jenkins advised Mr. Botts that all of the commercial assessments from 2010-2014 "can be loaded onto a [CD] and mailed to you or held for pickup. The fee would be $ 250." The PVA also explained that the "sales/lease data of commercial property for years 2010-2013 no longer exist[s]," but this data is available from 2014 and can be viewed in the agency's office during regular office hours. Copies of those documents are 25 [cents] each. On appeal, Mr. Botts explained that he requested the items for use in representing his client during a tax-assessment appeal. He argued that $ 250.00 is excessive as the assessments requested currently exist in electronic format and merely have to be loaded onto a CD. 2 He further argued that the PVA's response was incomplete as to his request for the underlying documentation, because his agency should maintain those records. In response, the PVA explained that he was initially unaware of Mr. Botts's intended use of the records and he did not require Mr. Botts to provide a certified statement per KRS 61.874(4)(b).
First, it is undisputed that Mr. Botts requested "tax assessments" for the purpose of appealing a property-tax assessment. When applicable, the more specific PVA Open Records Commercial Fee Guidelines prevail over the general fee provisions of the Open Records Act. See 13-ORD-185 (copy enclosed). In the absence of a commercial purpose, however, a PVA is generally entitled to recover only a reasonable fee based on the factors identified at KRS 61.874(6)(a) when the agency has exercised its discretion to provide online access to public records in electronic form. As with any decision involving statutory construction, this office must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated. Stogner v. Commonwealth, 35 S.W.3d 831, 835 (Ky. App. 2000). Notwithstanding the provisions of KRS 61.874, in accordance with KRS 133.047(4) "the Department of Revenue shall develop and provide to each property valuation administrator a reasonable fee schedule to be used in compensating for the cost of personnel time expended in providing information and assistance to persons seeking information to be used for commercial or business purposes ." (Emphasis added). See 02-ORD-089. 3 However, KRS 133.047(4) also expressly precludes the PVA from recovering personnel costs in responding to requests when the records sought are "directly related to property tax assessment, [or] appeals. . . ." Likewise, KRS 61.870(4)(b)(3) excludes from the definition of "commercial purpose, " the "[u]se of a public record in the preparation for prosecution or defense of litigation, or claims settlement by the parties to such action, or the attorneys representing the parties." See 11-ORD-211. The plain language of KRS 133.047(4) and 61.870(4)(b)(3) is controlling on the facts presented. In charging a fee based on the PVA Commercial Fee Guidelines, the PVA subverted the intent of the Act within the meaning of KRS 61.880(4). The PVA must recalculate his fee based on the costs identified at KRS 61.874(6)(a). See 07-ORD-143 (only the costs identified at KRS 61.874(6)(a) may be recouped absent a commercial purpose) .
Second, this office holds that the PVA cannot produce nonexistent records for inspection or copying nor is the agency required to "prove a negative" in order to refute a claim that certain records exist in the absence of a prima facie showing by the requester. See Bowling v. Lexington Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005); 07-ORD-188; 13-ORD-024; compare 11-ORD-074 ("existence of a statute, regulation, or case law directing the creation of the requested records creates a presumption of the record's existence, but this presumption is rebuttable"). In other words, the right of inspection 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; 11-ORD-104. It is not generally "incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-136, p. 2. KRS 61.880(2)(a) narrowly defines the role of the Attorney General in resolving disputes concerning access to public records.
Third, the PVA also subverted the intent of the Act in prematurely destroying the underlying documentation at issue. Although the Attorney General does not find, as a matter of law, that the PVA violated the Open Records Act by failing to provide Mr. Botts with copies of "documents showing how the assessments listed in Request 1 above were calculated, " the PVA subverted the intent of the Act, within the meaning of KRS 61.880(4), by failing to establish an effective system for management and retention of agency records, "thereby frustrating the public's right of access." 10-ORD-130, p. 5; 11-ORD-104.
The intent of the Open Records Act is statutorily linked to the intent of KRS Chapter 171. Under KRS 61.8715, public agencies are required "to manage and maintain [their] records according to the requirements" of the Open Records Act, KRS 61.870--61.880, and the State Archives and Records Act, KRS 171.410--171.740, in order "to ensure the efficient administration of government and to provide accountability of government activities. . . ." 94-ORD-121, p. 8; 11-ORD-104. In sum, "the key to records access is effective records management." Id., p. 10. Accordingly, there is a higher standard of review applied when denials are based upon the nonexistence of the records being sought. "In order to satisfy its burden of proof under KRS 61.880(2)(c), a public agency must fully explain why it cannot produce the record(s) being sought and under what authority the record(s) was destroyed, if appropriate." 11-ORD-104, p. 5. See Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011)(when a public agency cannot produce records that are presumed to exist, "the person requesting the records is entitled to a written explanation for their nonexistence" ). "Loss or destruction of a public record creates a rebuttable presumption of records mismanagement." 11-ORD-104, p. 5; 13-ORD-024. The PVA has not rebutted this presumption here.
Under KRS 171.420, the State Archives and Records Commission is authorized to "review and approve schedules for retention and destruction of records submitted by state and local agencies. " Additionally, the Commission is charged with the duty to "establish standards for the selective retention of records of continuing value," and Kentucky Department for Libraries and Archives (KDLA) with the duty to "assist state and local agencies in applying such standards to records in their custody. " KRS 171.530. Of particular significance, the Commission exercised this authority in creating the Department of Revenue Records Retention Schedule , a review of which reveals a Records Series (03371) in the section relating to Property Valuation Administrators entitled "Tax Assessment and Appraisal Card File." Series 03371 "documents taxable property and its value to aid the [PVA] in determining the assessment of the property for tax purposes." The Retention and Disposition instructions provide that such records must be retained in the PVA Office and destroyed "five (5) years after last entry on card and audit." A representative of the KDLA has confirmed that documents responsive to item 2 of Mr. Botts's request would fall within this series. Inasmuch as the PVA has acknowledged that records from 2010-2013 no longer exist, a referral to KDLA, consistent with KRS 61.8715, for additional inquiry as that agency deems warranted is appropriate.
Ultimately, this office cannot afford Mr. Botts the relief that he seeks; the Attorney General is not empowered to declare the inability of the PVA to produce nonexistent records a violation of the Act, or to compel the PVA to maintain a certain type of record(s) for a specific period of time. Inasmuch as the latter prerogative resides with KDLA and the Archives and Records Commission, the Attorney General respectfully defers to those entities regarding the issues raised. Either party may appeal this decision by initiating action in the appropriate circuit court per 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.
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