Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; AMYE L. BENSENHAVER, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Bell County Sheriff's denial of James Nick Harrison's February 16, 1996, request to inspect records regarding the confiscation of two thousand two hundred dollars ($ 2,200.00) from Anthony Eldridge on or about November 19, 1991, in relation to indictment 92-CR-00067.
On March 26, 1996, this office contacted the Bell County Sheriff informing him that Mr. Harrison had not yet received a response to his open records request. On March 29, 1996, this office received a copy of Mr. Harold Harbin's response to Mr. Harrison's request. In that response, Mr. Harbin, who was elected in 1994, advised Mr. Harrison that he did not have custody or possession of any paperwork or receipts from 1991. He explained that when he took over office in January, 1994, he discovered that the previous administration had removed its records. Mr. Harbin did, however, express the belief that those records might have been transferred to the Bell County Circuit Court Clerk.
We are asked to determine if the Bell County Sheriff violated the provisions of KRS 61.870 to 61.884, or otherwise subverted the intent of those provisions, in responding to Mr. Harrison's request. For the reasons set forth below, we conclude that the Sheriff did not violate the Open Records Act insofar as he cannot make available records which have disappeared or otherwise do not exist, but that the Bell County Sheriff's Office 1 failure to adequately manage its records so that those records can be retrieved and made available to the public may constitute a subversion of the intent of the Act, and may also constitute a violation of Chapter 171 of the Kentucky Revised Statutes relating to management of public records.
We begin by noting that the Sheriff does not assert that the requested records are not public records for purposes of the Open Records Act. Nor does the Sheriff rely on any of the exceptions to the Open Records Act, codified at KRS 61.878(1), in denying the request. Instead, the Sheriff asserts that when he took office in 1994, he learned that the former administration had not left any paperwork or receipts, and that therefore the records which Mr. Harrison requested were not available for inspection. KRS 61.870(2) defines the term "public record" as "all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics which are prepared, owned, used, in the possession of or retained by a public agency. " "To provide accountability of [its] activities," the Sheriff is "required to manage and maintain [his] records according to the requirements" of the Open Records Act, KRS 61.870 - 61.880, the State Archives and Records Act, KRS 171.410 - 171.740, and the Information Systems Act, KRS 61.940 to 61.957. KRS 61.8715. The General Assembly has thus recognized that there is an "essential relationship" between these statutes. KRS 61.8715.
In 94-ORD-121, this office analyzed the language of KRS 61.8715 in considerable depth. It is instructive to quote from that decision at length:
The "basic policy" of the Open Records Act, recognized by Kentucky's courts, and codified at KRS 61.871, "is to afford free and open examination of public records . . . ." Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324 (1992);Frankfort Publishing Co., Inc. v. Kentucky State University, Ky., 834 S.W.2d 688 (1992) [footnote omitted]. To this end, an agency must adopt rules and regulations which conform to the provisions of KRS 61.870 to 61.884:
To provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to ensure efficient and timely action in response to application for inspection . . . .
KRS 61.876(1) [emphasis added]. The responsibility for the "maintenance, care and keeping" of the agency's public records is assigned to the official custodian of records. KRS 61.870(5). This position may be occupied by the chief administrative officer or any other officer or employee of a public agency vested with these duties.
Until July 15, the State Archives and Records Act, codified at KRS 171.410, tracked a parallel path to that of the Open Records Act. Those paths now converge. Under the provisions of the Archives and Records Act, "the head of each state and local agency shall establish and maintain an active continuing program for the economical and efficient management of the records of the agency." KRS 171.680. The agency's program must provide for:
(a) Effective controls over the creation, maintenance, and use of records in the conduct of current business;
(b) Cooperation with the department in applying standards, procedures, and techniques designed to improve the management of records;
(c) Promotion of the maintenance and security of records deemed appropriate for preservation, and facilitation of the segregation and disposal of records of temporary value;
(d) Compliance with the provisions of KRS 171.410 to 171.740 and the rules and regulations of the department [for Library and Archives].
Among the duties imposed on the agency head by operation of these provisions, he must "establish such safeguards against removal or loss of records as he shall deem necessary and as may be required by rules and regulations issued under authority of KRS 171.410 to 171.1740." KRS 171.710. These safeguards include "making it known to all officials and employees of the agency that no records are to be alienated or destroyed except in accordance with law, and calling attention to the penalties provided by law for the unlawful removal or destruction of records." KRS 171.710.
In enacting KRS 61.8715 the General Assembly recognized that the intent of the Open Records Act, to provide full access to public records, was essentially related to, and would be promoted by, efficient records management. This, of course, is the intent and purpose of the State Archives and Records Act. Subversion of the intent of the Archives and Records Act thus constitutes subversion of the intent of the Open Records Act. If a public agency fails to discharge its statutorily mandated duty to establish effective controls over the creation, maintenance, and use of records, and to make known to all of its officials and employees that no records are to be destroyed except in accordance with the law, the agency subverts the intent of the Open Records Act by frustrating full access to public records.
94-ORD-121, p. 8-10. This decision has a direct bearing on the present appeal.
The Attorney General has long recognized that a public agency cannot afford a requester access to records which do not exist or cannot be located. See, e.g., OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203. 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. As we observed in OAG 86-35, at page 5, "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." However, since July 15, 1994, when the amendments to the Open Records Act took effect, we have applied a higher standard of review relative to denials based on the nonexistence, or here the disappearance, of the requested records. In order to satisfy its statutory burden of proof, a public agency must, at a minimum, document what efforts were made to locate the missing records. Because the Sheriff cannot provide an explanation for the removal of the requested records, we are compelled to conclude that the Sheriff's office may have failed to adequately manage its records. The loss or removal of a public record creates a presumption of records mismanagement, but this presumption is rebuttable. In the instant appeal, this presumption has not been rebutted.
Thus, while we do not find, as a matter of law, that the Sheriff violated the Open Records Act by failing to afford Mr. Harrison access to the requested records, those records having apparently disappeared, we do find that the Sheriff's office may have subverted the intent of the Act by failing to establish effective controls over the creation, maintenance, and use of those records, and to properly educate its employees on their records management duties, thus frustrating full access to its records. We have also referred this matter to the Department for Libraries and Archives, Public Records Division, for a determination of whether the Bell County Sheriff's Office violated the provisions of Chapter 171, and in particular KRS 171.640 and KRS 171.710, relative to its duty to manage and preserve its public records, and to establish safeguards against removal or loss of those records.
Ultimately, of course, we cannot afford Mr. Harrison the relief he seeks, to wit, access to records regarding the November, 1991, confiscation of two thousand two hundred dollars ($ 2,200.00) from Anthony Eldridge. We cannot order the disclosure of records which have disappeared. Nor can we order the Sheriff's office to reevaluate its records management program. As we noted at page 11 of 94-ORD-121:
KRS 61.880(2)(a) expressly provides an administrative remedy for violation of the Open Records Act by and through the Attorney General. That remedy lies in the submission of a written appeal and the issuance of a written decision stating whether the agency violated, or otherwise subverted the intent of, provisions of KRS 61.870 to 61.884. It is an "elementary canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court [and, of course, this Office] must be chary of reading others into it. Transamerica Mortgage Advisors, Inc. v. Lewis, 441 U.S. 11, 19, 62 L. Ed. 2d 146, 100 S. Ct. 242 (1979), quoted inKissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 149, 63 L. Ed. 2d 267, 280, 100 S. Ct. 960 (1980). [Footnote omitted.]
Although we are not authorized to order it to do so, we urge the Bell County Sheriff's Office to reexamine its records management program to insure that it conforms to the cited provisions of the Open Records and State Archives and Records Acts.
A party aggrieved by this decision may challenge it by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court but shall not be named as a party in that action or in any subsequent proceedings.
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