Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Managing Editor Brendan McCarthy, Kentucky Center for Investigative Reporting ("Center"), initiated this appeal by letter dated July 22, 2016, challenging the June 21, 2016, disposition by the University of Louisville Foundation ("Foundation") of the Center's June 16, 2016, request for "copies of records related to or explaining certain disclosures" from the Foundation's 2015 Annual Report. Mr. McCarthy requested the following:
. Records that explain the disparity between "real estate income" and "real estate operations" expenses as posted on page 4 of the annual report. Records that indicate the extent to which the total interest expense as of June 30, 2015, stems from any real estate purchases.
. A breakout of the buildings whose combined $ 73.5 million in value is indicated on page 31 of the report, including the name and/or address of the building, their purchase price and date and their individual carrying value as of June 30, 2015.
. A breakout of the land whose combined $ 40.6 million in value is indicated on page 31 of the report, including the address and/or location of the land and the properties' individual carrying value as of June 30, 2015.
. Records of the foundation's purchase of the 990 Class B units of Sapulpa Real Estate Holdings LLC ["Sapulpa"], including any agreements or contracts and amendments.
. The note payable to CF One LLC in connection with the purchase of the 990 Sapulpa units, including any modifications and extensions. Additionally, any releases or satisfaction records showing that the debt has been fully repaid.
. Copies of appraisals of the industrial property in Sapulpa, Okla., owned by CF One LLC and conveyed by CF One to [Sapulpa]. I seek any appraisal that might have been done in conjunction with the foundation's investment in [Sapulpa]. If none was performed, I seek records explaining the absence of a fresh appraisal.
. Records reflecting the sale of the industrial property in Sapulpa, Okla., including the amount, date and parties of the sale.
. E-mails and letters between foundation employees, including James Ramsey, and Henry Heuser, his attorneys or agent, relating to the purchase of the Sapulpa units and note payable to CF One LLC, as well as those e-mails and letters conveying subsequent developments about the underlying industrial property during the foundation's ownership of the Sapulpa units.
In a timely but partially deficient response, Records Custodian Kenyatta Martin advised the Center that the records being sought "are in storage, in active use or otherwise not readily available. See KRS 61.872(5). The Foundation is in the process of retrieving and reviewing potentially responsive public records. I will contact you by July 6, 2016, regarding any responsive public records the Foundation identifies." In his July 22, 2016, appeal Mr. McCarthy, in relevant part, noted that neither Ms. Martin nor any representative of the Foundation had contacted him on July 6 or since. Mr. McCarthy enclosed a copy of Investigative Reporter Kate Howard's July 19, 2016, e-mail to Ms. Martin advising that she would be the "point person" regarding the Center's June 16, 2016, request moving forward and requesting an update regarding the status of the request.
Upon receiving notification of Mr. McCarthy's appeal from this office, attorney David E. Saffer advised on behalf of the Foundation that Ms. Martin sent a final response by letter dated July 21, 2016, a copy of which Mr. Saffer attached to his appeal response. With regard to item 1 of the request, Ms. Martin advised that "no responsive records exist." Citing prior decisions of this office, Ms. Martin observed that the Act "does not require public agencies to explain records" nor do public agencies have a statutory obligation to create a record. With regard to item 2, Ms. Martin also stated that "no responsive records exist." In order to provide the requested information, she advised, the Foundation would have to create a record which, as previously noted, is not required under the Open Records Act. Likewise, the Foundation denied that any responsive public records exist in response to items 3, 4, 8, and 9 of the request. With regard to items 5, 6, and 7 of the request, Ms. Martin advised that the Foundation "has located, and will make available to you, the documents described on Exhibit A , attached hereto and incorporated herein." 1 Based upon the following, this office finds that neither the Foundation's initial response nor its appeal response contained the specificity required under the Open Records Act; however, this office finds no substantive error in the Foundation's ultimate disposition of the Center's June 16, 2016, request.
A public agency such as the Foundation must comply with procedural and substantive requirements of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . 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." A public agency cannot generally postpone this deadline. 04-ORD-144, p. 6. "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); 01-ORD-140. For this reason, the Act "contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply." 01-ORD-140, pp. 3-4.
The only provision of the Act that authorizes postponement of access to public records beyond three business days, KRS 61.872(5), provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
(Emphasis added.) Here, as in 16-ORD-206 (In re: Kentucky Center for Investigative Reporting/University of Louisville Foundation, rendered September 12, 2016), the Foundation issued a written response within three business days per KRS 61.880(1), and expressly invoked KRS 61.872(5); the Foundation also provided a date by which records would be made available, but failed to provide a "detailed explanation," as required to successfully invoke KRS 61.872(5). Inasmuch as the Foundation's response in 16-ORD-206 was identical to its response on this occasion, the analysis of KRS 61.880(1) and 61.872(5) found at pages 3-4 of that Open Records Decision applies with equal force on the facts presented.
The Foundation also failed to comply with its own deadline of July 6 and has not denied that no further communication was exchanged regarding the status of the Center's June 16, 2016, request until Ms. Howard contacted Ms. Martin by e-mail dated July 19, 2016. The Foundation sent a final response on July 21, 2016, approximately five weeks after it received Mr. McCarthy's request. No explanation for the Foundation's procedural deficiency or justification for the delay was offered in response to Mr. McCarthy's appeal. "In the absence of a legitimate detailed explanation of the cause for delaying access" for approximately five weeks, the Attorney General again finds that the Center "did not receive 'timely access' to the records eventually provided." 16-ORD-206, p. 4; 13-ORD-052, pp. 6-7; 15-ORD-141. However, Ms. Martin ultimately provided the Center with all existing responsive documents in the possession of the Foundation and the Foundation cannot produce that which it does not have.
A public agency cannot produce nonexistent records nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005) ("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"); 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"). On this issue, the analysis contained at pages 4-5 of 16-ORD-206 is controlling; a copy of that decision is enclosed. In addition, 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. 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; OAG 91-12. 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. See 10-ORD-201; 14-ORD-073. "In the absence of any facts or evidence from which the existence of additional responsive documents within the possession of the Foundation can be presumed, this office has no basis upon which to find that a substantive violation was committed." 16-ORD-206, p. 5.
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 must not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Exhibit A identified nine records in the following manner:
1. Amended and Restated Operating Agreement for [Sapulpa], dated April 23, 2014.
2. Certificate for 990 Class B Units of Participation, issued to the Foundation, dated April 23, 2014.
3. Non-Recourse Promissory Note dated April 23, 2014, in the amount of $ 3,470,940.00 given by the Foundation in favor of CF One, LLC.
4. Security Agreement -- Limited Liability Company Membership by and between CF One, LLC and the Foundation.
5. Amendment to Note and Pledge Agreement dated September 12, 2014 by and between CF One, LLC and the Foundation.
6. Second Amendment to Note dated April 23, 2015 by and between CF One, LLC and the Foundation.
7. Assignment of Class B Units of Participation in [Sapulpa].
8. Calculation of Value prepared by Strothman & Company, [Sapulpa], dated April 17, 2014.
9. April 18, 2014 Minutes of the Meeting of the Board of Directors of the Foundation.