NOT TO BE PUBLISHED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 Statutes.

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. Id.

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 proceeding.

A. B. Chandler III

Attorney General

Amye L. Bensenhaver

Assistant Attorney General

#686

Distributed to:

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