NOT TO BE PUBLISHED
97-ORD-103
June 30, 1997
In re: Akles Wynn/Harlan County Health Department
Open Records Decision
This is an appeal from the Harlan County Health Department's
response to Ackles Wynn's May 16, 1997, request for a copy of
"the permit for the disposal of septic tank pumpings on
property located on Highway 38 (near Evarts) on the site of the
old (former) Verda drive-in movie theatre, adjacent to Verda
elementary school." The question presented in the appeal is
whether the Department violated the Open Records Act in orally
denying Mr. Wynn's request on the basis that no permit exists
because none is required. For the reasons which follow, we find
that the Department did not violate the Act in denying the
request, insofar as it cannot make available for inspection a
record which does not exist, but that its failure to respond to
the request in writing violated KRS 61.880(1).
This office has long recognized that a public agency cannot
afford a requester access to a record which does not exist. See,
e.g., 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."
Nevertheless, since 1994, when the Open Records Act was
amended, this office has applied a higher standard of review
relative to denial based on the nonexistence of a record. See,
e.g., 94-ORD-142. In order to satisfy its statutory burden of
proof, a public agency must, at a minimum, offer some explanation
for the nonexistence of the record. The Harlan County Health
Department maintains that under authority of KRS 224.223(3), (4),
and (5), it is not required to issue a permit for a disposal
site. Our review of the statute discloses that KRS 224.223 was
renumbered in 1991, and is now found at KRS 211.972. That statute
provides:
No person shall engage in the business of servicing or
maintaining sewage pretreatment units, grease traps, or holding
tanks, or the transporting of sewage sludge from those facilities
within the Commonwealth of Kentucky without being licensed and
bonded as hereinafter provided.
Although KRS 211.974, formerly codified as 224.225, contains
exceptions from the general licensing requirement for a property
owner who cleans his own pretreatment unit, a municipality which
services a public sewage treatment facility, and a master plumber
licensed by the state, the cited recodified provision does not
contain a subsection (3), (4), or (5). Accordingly, we are unable
to determine whether the Department has established an adequate
basis or explanation for the nonexistence of the requested
record. For this reason, we have referred this matter to the
Department for Libraries and Archives for a determination whether
additional inquiries are warranted under KRS 171.640, requiring
adequate and proper documentation of essential transactions of an
agency.
Ultimately, of course, we cannot afford Mr. Wynn the relief he
seeks, namely access to the permit for disposal of sewage sludge
on property located on Highway 38. We cannot require the
disclosure of a record which was never created. Nor can we find,
as a matter of law, that the Harlan County Health Department
violated the Open Records Act by failing to allow inspection of a
record which does not exist. Nevertheless, we urge the Department
to reevaluate its policies under the Act to insure compliance
with future requests.
In closing, we note that the Department's verbal response to
Mr. Wynn's original open records request did not satisfy the
requirement of the statute. 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.
As this office has frequently
recognized, 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."
And, as we noted in OAG 90-79, at page 3, "No matter how the
public agency views the merits of the request it must respond in
writing and in a timely and proper manner." This particular
appeal underscores the need for a written record, consisting of
the request letter and agency response, formally documenting the
actual exchange between the parties. Absent such a record, this
office is severely disadvantaged in adjudicating the dispute. The
Harlan County Health Department should bear these observations in
mind in processing all open records 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.
A. B. Chandler III
Attorney General
Amye L. Bensenhaver
Assistant Attorney General
#618
Distributed to:
Ackles Wynn
Route 1, Box 333
Evarts KY 40828
Danny Davis
Environmental Supervisor
Cumberland Valley District Health Dept.
P. O. Box 158
Manchester KY 40962
Herman G. Johnson
Public Health Director
Cumberland Valley District Health Dept.
P. O. Box 158
Manchester KY 40962
Richard Belding, Director
Public Records Division
Department for Libraries and Archives
P. O. Box 537
Frankfort KY 40602