NOT TO BE PUBLISHED
In re: John F. Henry/City of Highland Heights
This is an appeal from the City of Highland Heights' response
to John F. Henry's June 9, 1997, request to inspect "public
notification for bids, minutes of city council approvals and copies
of signed contracts" for four checks issued by the City.
Through its city clerk and treasurer, Jean A. Rauf, the city
responded that there were no written contracts for these checks
and no public notification for bids. Although Ms. Rauf stated
that the "council approved the budget," she did not
indicate whether these expenditures were approved at public meetings,
and the council's approval memorialized in minutes of those meetings.
The question presented in this appeal is whether the City of
Highland Heights violated provisions of the Open Records Act in
responding to Mr. Henry's request. For the reasons which follow,
we conclude that the City cannot be said to have violated the
Act insofar as it can produce records which do not exist. However,
because this appeal raises serious records management issues,
we have referred the matter to the Department for Libraries and
Archives for review under Chapter 171 of the Kentucky Revised
This office has long recognized that a public agency cannot furnish
access to records which do not exist. See, for example, OAG 83-111;
OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17. We have also recognized
that it is not our duty to investigate in order to locate documents
which do not exist or have disappeared. OAG 86-35. Thus, at
page 5 of OAG 86-35 we observed, "This office is a reviewer
of the course of action taken by a public agency and not a finder
of documents . . . for the party seeking to inspect such documents."
In 1994 the Open Records Act was amended. The Act now provides
"that to ensure the efficient administration of government
and to provide accountability of government activities, public
agencies are required to manage and maintain their records according
to the requirements of [KRS 171.410 to 171.740, dealing with the
management of public records, and KRS 61.940 to 61.957, dealing
with the coordination of strategic planning for computerized information
systems]." KRS 61.8715. The General Assembly has thus recognized
"an essential relationship between the intent of [the Open
Records Act]" and statutes relating to records management.
Since these amendments took effect on July 15, 1994, the Attorney
General has applied a higher standard of review to denials based
on the nonexistence of the requested records. In order to satisfy
its statutory burden of proof, an agency must, at a minimum, offer
some explanation for the nonexistence of the records. See, for
example, 94-ORD-140 (records of investigation not in sheriff's
custody because sheriff did not conduct investigation); 97-ORD-17
(evaluations not in university's custody because written evaluations
were not required by university's regulations). The City of Highland
Heights fails to offer even a minimal explanation for the nonexistence
of public notification for bids and signed contracts for the four
checks identified in Mr. Henry's request. Accordingly, we are
unable to determine if the City has established an adequate basis
or explanation for the nonexistence of these records, and thus
met its statutory burden of proof. KRS 61.880(2)(c). For this
reason, we have referred this matter to the Department for Libraries
and Archives for a determination whether additional inquiries
are warranted under Chapter 171, and in particular KRS 171.640
requiring adequate and proper documentation of essential transactions
of an agency.
Ultimately, of course, we cannot afford Mr. Henry the relief
he seeks, namely access to public advertisements for bids and
signed contracts for the four checks identified in his request.
We cannot declare the failure to produce nonexistent records
a violation of the Open Records Act or compel the disclosure of
records which were never created. Allegations of improprieties
in the discharge of official functions cannot be adjudicated in
an open records appeal, but may, upon sufficient evidence, be
presented to the courts.
In closing, we note that the city never properly responded to
Mr. Henry's request for "minutes of city council approval"
of the expenditures resulting in the issuance of the four checks.
Ms. Rauf merely noted that the "council approved the budget."
If no records exist which satisfy this portion of Mr. Henry's
request, the city is obligated to so state in clear and direct
terms. OAG 86-38; OAG 91-101; 96-ORD-164. If such records do
exist, the city is obligated to disclose them to him. KRS 61.835.
Mr. Henry also takes issue with the sketchy nature of the 1995-96
city budget ordinance with which he was provided in response to
his request for the budget. Although the issue of the adequacy
of a public record is not cognizable under the Open Records Act,
we remind the city that it is obligated to disclose all nonexempt
records which satisfy an open records request. Thus, if the mayor
prepared a budget conforming to the requirements of KRS 91A.030,
that is, a budget which "mak[es] appropriations . . .
in such sums as the legislative body finds sufficient and proper"
for specifically identified services such as police and fire service,
road repair, sanitation, that document is a public record and
Mr. Henry must be afforded access to it.
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
A. B. Chandler III
Amye L. Bensenhaver
Assistant Attorney General
John F. Henry
202 Sunset Drive
Highland Heights KY 41076
Jean A. Rauf
Custodian of Records
City of Highland Heights
175 Johns Hill Road
Highland Heights KY 41076
Steven J. Franzen
Highland Heights City Attorney
319 York Street
Highland Heights KY 41076
Richard N. Belding
Director of Public Records
Department for Libraries and Archives
300 Coffee Tree Road
Frankfort KY 40601