NOT TO BE PUBLISHED
95-ORD-8
January 25, 1995
In re: Melissa Best/Hardin County Fiscal Court
OPEN RECORDS DECISION
This appeal originated in a series of requests to inspect public records submitted by Ms. Melissa Best to the Hardin County Fiscal Court. Ms. Best submitted her first request to Hardin County Judge/Executive Glen D. Dalton on September 9, 1994, seeking access to "cancelled checks from Hardin County to Vermeer Sales and Service for the purchase of equipment and any other devices . . . ." According to Ms. Best, she received no response to this request. [1] On September 21, she submitted a second request to the Hardin County Road Department, requesting copies of "all purchase and or lease contract/agreements between the Hardin County Road Department and Vermeer Sales and Service." Ms. Best renewed her request for "checks made payable to Vermeer Sales and Service from the Hardin County Fiscal Court for payment and or purchase of equipment, parts and equipment [sic] utilized by the Hardin County Road Department."
Ms. Best indicates that she received a telephone call from Mr. Danny Allen, an employee of the Road Department, within the week. Although we have no written record to confirm this, Mr. Allen apparently told Ms. Best that the records she sought were available in his office, with the exception of copies of checks. After making several attempts to obtain the documents, Ms. Best contacted Mr. Allen on October 26 and was advised that she must resubmit her request to the County Attorney. This she did on October 31, simultaneously initiating this open records appeal. [2]
Hardin County Attorney Ken M. Howard responded to Ms. Best's October 31 request on November 2, confirming Judge Dalton's earlier correspondence. Noting that her renewed request appeared to be identical to her earlier requests to the County Judge/Executive and the Road Department, he advised Ms. Best that "[t]his office does not have custody of any invoices pertaining to purchases made from any vendor by the Hardin County Road Department." Mr. Howard asked that she contact him if her request to his office differed from her earlier requests.
In her letter of appeal to this office, Ms. Best questions the county's position. She asks how Mr. Allen's position can be squared with that of the County Judge/Executive and County Attorney relative to the existence of these records.
We are asked to determine if the Hardin County Fiscal Court violated the Open Records Act in responding to Ms. Best's requests. For the reasons set forth below, we conclude that the Fiscal Court's responses, although procedurally deficient, were otherwise consistent with the Act.
KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute 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 action.
Although Mr. Howard's response to Ms. Best was timely, on at least one occasion Judge Dalton failed to respond in a timely fashion. Ms. Best's initial request was dated September 9. Judge Dalton's response to this request was dated September 21, well beyond the three working day time limitation imposed by KRS 61.880(1). We urge Judge Dalton to review the cited provision to insure that future responses conform to the Open Records Act. [3]
At page four of 93-ORD-51, this office recognized that a public agency cannot afford a requester access to a document which does not exist or which it does not have in its possession or custody. In general, it is not our duty to investigate in order to locate documents which the requesting party maintains exist, but which the public agency states do not exist.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records . . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants additional inquiries. Judge Dalton maintains, and Mr. Howard confirms, that the Fiscal Court does not have custody of any records which satisfy Ms. Best's request. The question presented is thus factual, rather than legal, in nature.
This office has no reason to doubt the County Judge's statement that the requested records do not exist. We must assume that there have been no transactions between the Hardin County Fiscal Court and Vermeer Sales and Service. If records of any transactions between the Court and Vermeer do exist, and are reposited in some other public agency, the Fiscal Court is obligated to provide Ms. Best with the name and location of the official custodian of that agency's records pursuant to KRS 61.872(4).
KRS 61.991(2)(a) establishes a penalty for public officials who willfully conceal or destroy public records with the intent to violate the provisions of the Open Records Act. There is no proof in the instant appeal, other than Ms. Best's unsubstantiated allegations, that the requested records were concealed or destroyed for this or any other reason. Such evidence, if it exists, should be presented to the local prosecutorial authorities who may proceed to a determination of this matter. The Attorney General is not, however, empowered to render a decision on this question in an open records appeal.
Ms. Best and the Hardin County Fiscal Court may challenge this decision by initiating action in the appropriate circuit court. 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 proceedings.
CHRIS GORMAN
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
res/1440
Distributed to:
Hon. Glen D. Dalton
Hardin County Judge/Executive
P.O. Box 568
Elizabethtown, KY 42702-0258
Ms. Melissa Best
P.O. Box 2087
Elizabethtown, KY 42702
Hon. Ken M. Howard
Hardin County Attorney
P.O. Box 884
Elizabethtown, KY 42702-0884
[1]This statement is not undisputed. Among the materials sent to this office by County Attorney Ken M. Howard is a September 21, 1994 letter from Judge Dalton to Ms. Best advising her that no records of payment to Vermeer Sales and Service for the current fiscal year exist.
[2]During this same period, Ms. Best received a letter from County Judge/Executive Dalton. On September 26, Judge Dalton responded:Please be advised that your open records request by letter dated September 21, 1994, addressed to the Hardin County Road Department at 501 Bacon Creek Road, Elizabethtown, Kentucky, 42701, has been forwarded by the road department Supervisor to my office for a response. There are no purchase and or lease contract/agreements between Hardin County or the Hardin County Road Department and Vermeer Sales and Service for the current fiscal year. The response to your request of copies of checks made payable to Vermeer Sales and Services is the same response as my previous letter to you on this topic. The Hardin County Road Department does not have a separate checking or purchasing system outside of the Hardin County Fiscal Court and the Hardin County Treasurer.
[3]We cannot reconcile the conflicting contentions of the parties relative to the Judge's purported failure to respond to Ms. Best's initial request. For our purposes, it is sufficient that the documentary evidence support his assertion that he responded, albeit in an untimely fashion.