Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Georgetown-Scott County Planning Commission ("Commission") violated the Open Records Act in its disposition of Kenneth Tracy's requests for records regarding land use. For the reasons stated below, we find that the Commission violated the Act by failing to explain the steps it took to search for records that it speculated did not exist. The Commission committed procedural violations of KRS 61.880(1) and KRS 61.872(5) by failing to respond to the requests within three days and by failing to explain the reason for delay.
Kenneth Tracy ("Appellant") submitted three open records requests to the Commission on February 4, 2019. His first request was for copies of the "Board of Adjustment meeting and the approved CUP for the outside storage" for eight properties. 1 Appellant's second request was for a "copy of [the] Development Plan" for four listed properties. Appellant's third request was for a copy of "the CUP and meeting notes from [the] Board of Adjustments for the Home Occupation permit allowing Bill Burke run [a] business at 203 The Masters[,] Georgetown[,] Ky 40324." Appellant appealed to this office on February 12, 2019, stating that the Commission failed to respond to his requests.
After receiving notice of the appeal, the Commission responded by letter dated February 19, 2019. In response to the first request, the Commission stated that "We have no BOA records on any of these properties for Conditional Use Permits." Likewise, for the second request, the Commission stated that "We have no Development Plans or variance approvals for any of these properties." And, similarly, for the third request, the Commission stated that "We have no BOA meeting notes or activity from this site. " The Commission summarized and explained the absence of responsive records:
We have no records for these sites. Based on the address and description it appears a number of these properties have uses that have been in place for decades. If a use exists on a property for ten years with no enforcement activity it becomes lawfully nonconforming. I'm sure that is the case for the Shed Squad, Mosess Small engines and for the Carriage House site.
(Emphasis added).
No Responsive Records . A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Commission indicated, but less than affirmatively, that the absence of responsive records "appears" to be due to the fact that some of the properties have uses that have been in place for over 10 years with no enforcement activity and therefore no responsive records would exist. In the absence of legal authority requiring the creation of the records, or facts indicating the records were created, we would not require further explanation of the requested documents' nonexistence. See 11-ORD-091. However, the Commission's answer was not definitive as to all the properties in question being "lawfully nonconforming. " Under these circumstances, where the Commission's answer was speculative about the reason for the absence of records for all properties in question, the Commission was under a duty to conduct a search for records that may not have fit into the "lawfully nonconforming" category.
In order to satisfy its burden of proof under KRS 61.880(2)(c), 2 the Commission is required to do more than speculate on the reason for the nonexistence of records. We have found that a public agency satisfies its burden of proof when it makes "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested[.]" 95-ORD-96, p. 4 (citing
Cerveny v Central Intelligence Agency, 445 F. Supp. 772, 775 (D.Colo. 1978)); 18-ORD-164. Therefore, a public agency must specify the steps taken to identify and locate requested records to meet the "good faith" standard and fully discharge its duty under KRS 61.880(2)(c). See 18-ORD-230; 19-ORD-013. The Commission failed to describe its efforts to locate the responsive records. Accordingly, we find that the Commission did not meet its burden of proof under the Act and failed to justify the denial of the requested records based on nonexistence of the responsive records.
Failure to respond within three days . As a public agency, the Commission must adhere to both the procedural and substantive provisions of the Open Records Act. KRS 61.880(1) sets forth the procedural guidelines which a public agency must comply with in responding to requests submitted pursuant to the Act. The Commission did not respond to the records requests until after it was notified of the appeal. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request 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. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Also, KRS 61.872(5) dictates that "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain." 01-ORD-38, p. 5 (emphasis added). The Commission's failure to respond to the requests within three days after receipt violated KRS 61.880(1), and the absence of a detailed explanation for delay constitutes a procedural violation of KRS 61.872(5). The Commission should take notice of the fundamental principle that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-134, p. 9.
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 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.
Footnotes
Footnotes
1 From the Commission's response, we understand "CUP" to stand for "Conditional Use Permit."
2 KRS 61.880(2)(c) states, in pertinent part:
The burden of proof in sustaining the action shall rest with the agency . . .