Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Burgin ("City") violated the Open Records Act in the disposition of James Caldwell's ("Appellant's") requests for records. On February 28, 2018, Appellant submitted a request for the following:
1) Please provide a complete list of all checks written in February 2018, by account, and in numerical order, (check registry)
2) Please provide a vendor transaction report for February 2018.
3) Please provide all reports, invoices, photos and work orders related to the payment for repairs to Emma Sue Burkhead's car. (Check number 9483 issued 11/15/17 for $ 1550.11)
4) Please provide any work orders from January 2014 to present involving the meter lid or box at 217 east main street [sic] Burgin Ky. (Burgin post office)
On March 1, 2018, the City responded to the request in writing. The City Clerk provided documents for the requests for the vendor transaction report and payments for the repair. The City denied the other two requests. Regarding the request for a list of checks written in February 2018, the City denied the request with the following response:
"1) Citing the Attorney General's previous opinion of 2/15/18 we do not have to print any check registry upon your request because this is not something we print in our course of business. You can refer to 04-0RD-080, p. 13 and p.5, OAG 91-12, p. 5. 'What the public gets is what the public agency has and in the format in which the agency has it'. [sic] Accordingly, if the City does not have an existing document the City is not required to compile a list in order to comply with Mr. Caldwell's request."
Regarding the request for work orders concerning the post office meter lid, the City denied the request with this response:
"1) Again citing the Attorney General's previous opinion of 2/15/18, the City is not required to conduct research for the purpose of satisfying a request. The City is required to make available for inspection, during normal office hours, records that might yield the information sought. 97-0RD-6, p. 5; 14-ORD-073. See KRS 61.872 (3). The City will be glad to make the requested material available for your inspection. You may copy any desired material. The office is open Monday through Friday, 8:00 am to 4:00 pm. We would appreciate you letting us know beforehand when you are coming so that we can make sure the material is out and ready for your inspection. City Hall's telephone number is 859-748-5220."
On March 5, 2018, Appellant submitted an appeal regarding the denial of the records. Appellant appealed the denial of the check registry, but stated that he would accept the opportunity to review documents at City Hall regarding the post office meter lid. On March 9, 2018, Appellant submitted a supplement to his appeal. In his supplement, Appellant informed this Office that he had examined records at City Hall, but alleged that documents were missing from the record. Appellant also argued that he was not allowed "access to the computer records" relating to the meter lid work orders.
We find that the City violated the Open Records Act when it denied access to the check registry. The City indicates that it has possession of at least a portion of the check registry. However, the City denies access stating "we do not have to print any check registry upon your request because this is not something we print in our course of business. " The City is incorrect. The definition of a 'public record' stated in KRS 61.870(2) is broad and encompasses the check registry and, as such, requires the City to allow access. KRS 61.870(2) provides, in relevant part:
"Public record" means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "
The check registry is a document that is either "in the possession of or retained by" the City, and thus the public has access. See KRS 61.870(2); 02-ORD-120, p. 10. Some records are exempted from inspection under KRS 61.878(1)(a) through (n), but the City does not cite an applicable exemption. Neither is there an exemption under KRS 61.878(1) that would exclude records not printed in the ordinary course of business. The City violated the Open Records Act when it denied access based on those grounds.
The City is correct in understanding that the "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. With that understanding, this Office has held that a public agency is not required to compile a list or to create a record in response to an open records request. See 18-ORD-008; 12-ORD-026. However, a public agency is required to make available for inspection, during normal office hours, those records which might yield the information sought. 97-ORD-06, p.5. The City's response to Appellant demonstrates that, even though it may not possess a list of checks written in February 2018, it does possess a public record that may yield that information. Pursuant to KRS 61.872(3) 1 a person may have access to records by one of two means: on-site inspection during the regular office hours of the public agency, or by receipt of the records from the agency through the mail. 03-ORD-067, p.4. Unless the City provides a basis for denying access in terms of one or more of the exemptions listed at KRS 61.878(1)(a) through (n), the City is required to provide Appellant access to the portion of the check registry it possesses in a manner prescribed by law.
The City complied with the requirements of the Open Records Act when it denied conducting research for Appellant, but provided access to the work orders involving the meter lid. The City permitted Appellant to review the relevant documents in its possession and copy any desired material. We have found that KRS 61.872(3) authorizes a public agency to require an open records applicant who resides in the county in which the requested records are located to inspect the records before providing the applicant with copies. 17-ORD-010; 14-ORD-144. "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). The City complied with the law and allowed inspection of the documents in its possession in lieu of gathering and supplying the requested information.
Regarding Appellant's appeal supplement pertaining to his belief that documents were missing from the record, this Office finds no evidence that additional records exist. The Attorney General has consistently recognized that a public agency cannot provide a requester with access to nonexistent records or those that it does not possess. 07-ORD-190, p. 6; 06-ORD-040. A public agency cannot produce that which it does not have 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 Cnty. Gov't, 172 S.W.3d 333, 340-41 (Ky. 2005); 07-ORD-188; 07-ORD-190. This Office has also noted 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. However, Appellant does not make a prima facie showing that the City is directed to create or maintain these records. Therefore, there is no basis for a finding that the City violated the Open Records Act in its disposition of the request for work orders.
A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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