May 7, 1996

In re: R. Keith Cullinan/City of Louisville


This matter comes to the Attorney General on appeal from the City of Louisville's denial of R. Keith Cullinan's February 27, 1996, request to inspect “such records as will provide the basis for . . . [Mary Russell's] statement, as referenced in the . . . Courier-Journal article dated February 23, 1996, that city officials estimate the cost of responding to open records requests filed by me and my family at $316,250 over the past five years.” On March 4, 1996, Paul V. Guagliardo, senior attorney for the City of Louisville's Department of Law, responded to Mr. Cullinan's request. That response consisted of the following brief declaration, “I am advised that there is no particular record responsive to your request.”

In a follow-up letter dated March 7, Mr. Cullinan challenged this response as “too vague to meet the requirement of informing a requesting party whether the requested records exist.” Moreover, Mr. Cullinan maintained, the reply was equivocal. If there is no “particular” record responsive to the request, he asks, is there a “general” record, such as a memo, summary, or note, that is responsive. In closing, Mr. Cullinan stated, “[I]f Ms. Russell was not being truthful and merely fabricated the estimate, then the Official Custodian should say so . . . and specifically state that no record of such an estimate exists.” Responding to Mr. Cullinan's revised request, Mr. Guagliardo advised that there is no memo, summary, or note that is responsive to his request for particularized records.

In yet another attempt to elicit an admission from the city that Ms. Russell fabricated the figure which appeared in the Courier-Journal, Mr. Cullinan again asked for “records that show the basis for [her] statement” on March 14. Mr. Guagliardo's March 21 reply restated the city's earlier position. Citing 94-ORD-15 and 94-ORD-8, he stated, “I have responded with regard to the records you have described with reasonable particularity. I believe and hope that I have fully complied with the Open Records law.”

We are asked to determine if the City of Louisville violated provisions of KRS 61.870 to 61.884 in its responses to Mr. Cullinan's request. For the reasons set forth below, and upon the authorities cited, we conclude that the city's response satisfied the requirements of KRS 61.880(1).

The narrow question presented in this appeal is how specific a public agency's custodian of records, or his designee, must be in denying the existence of records requested under the Open Records Act. In OAG 91-101, cited by Mr. Cullinan in support of his position, this office held that a public agency's response is insufficient under KRS 61.880(1) if it fails to advise the requesting party whether the requested record exists. Citing OAG 86-38, at page 3, we construed the obligation of the agency relative to a request to inspect documents, noting:

KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested. If the documents exist and inspection is denied, you should list each document which the city will not permit the requesting party to inspect and state how the exception to public inspection relied upon applies to the particular document withheld from inspection.

In other words, “If a record of which inspection is sought does not exist, the agency should specifically so indicate.” OAG 90-26, p. 4. In OAG 91-101, the record requested from the University of Kentucky was specifically identified as “minutes of a meeting of tenured faculty members conducted by Dr. Fred Knapp in November, 1986.” The agency's response neither admitted nor denied the existence of the minutes. We concluded that unless the agency was unable to determine whether the minutes exist, by virtue of the requester's failure to identify with reasonable particularity the meeting at which the minutes were taken, it must advise him whether they exist.

In contrast, Mr. Cullinan requested “such records as will provide the basis for . . . [Mary Russell's] statement, as referenced in the attached Courier-Journal article dated February 23, 1996, that city officials estimate the cost of responding to open records requests filed by me and my family at $316,250 over the past five years.” He did not request a specific record, or describe with reasonable particularity the record he wished to inspect. Instead, his request was, as Mr. Guagliardo aptly describes it, an “open-ended [ ] any-and-all-records-that-relate-type of request,” couched in the broadest possible terms. Under such circumstances, we believe that a general denial, such as the denial issued by the city, is appropriate.

This result is not inconsistent with the holding in OAG 91-101. Because Mr. Cullinan did not identify a specific record or records which he wished to inspect, or describe such records with reasonable particularity, the city could not advise him whether they exist. It was enough, in our view, to advise him that no particular record exists. To paraphrase an earlier open records decision, Mr. Cullinan's request was so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass. OAG 91-58, p. 4. As Mr. Guagliardo observed in his response to this office's notification of appeal:

Mr. Cullinan believes that the official custodian “is required to tell me unequivocally whether the records exist or don't exist.” Mr. Cullinan mischaracterizes the law and reality, particularly when his request is for unspecified records. When Mr. Cullinan did specify particular documents, we advised that there were none. But even then, rarely can one prove the negative and we are no exception. Even when we reply “none exists” that response is implicitly qualified by “as best we can determine.” We are neither perfect nor infallible and the law does not presume we are.

To require an unequivocal denial of a nonspecific request for records is to impose a burden on the public agency which no custodian of records, or individual acting under his authority, can practically discharge. We therefore conclude that the City of Louisville did not violate provisions of KRS 61.870 to KRS 61.884 in responding to Mr. Cullinan's requests.

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:

Paul V. Guagliardo

Senior Attorney

Department of Law

City of Louisville

Room 200

City Hall

Louisville KY 40202-2771

R. Keith Cullinan

Attorney at Law

1406 Browns Lane

Louisville KY 40207