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 University of Kentucky, Somerset Community College's, handling of an open records request submitted by William C. McDaniel to his division chair, John McGriff. On December 13, 1996, Mr. McDaniel requested colleague evaluations/assessments for his performance evaluation and four year progress to tenure review. On December 18, Mr. McDaniel received summaries of colleague assessments/evaluations. In an earlier letter, Mr. McGriff indicated that as division chair, it was his responsibility "to keep the evaluations of each evaluator confidential." Dissatisfied with the college's response, Mr. McDaniel initiated this appeal.
On January 15, 1997, this office received notification from George J. DeBin, official records custodian for the University of Kentucky, that on January 3 the University furnished Mr. McDaniel with copies of his colleague assessment forms for the 1996 performance review year. The evaluations were transmitted to Mr. McDaniel through his attorney, Elizabeth K. Broyles at Ms. Broyles's direction. Mr. DeBin indicated that no written evaluations or assessments from colleagues, relating to the four year progress to tenure review, exist, and that therefore the University could not furnish Mr. McDaniel with such records.
Inasmuch as the University had complied with Mr. McDaniel's requests, Mr. DeBin expressed the view that this appeal should be dismissed pursuant to 40 KAR 1:030(6). While we recognize that the University has attempted to remedy Mr. McGriff's error by disclosing Mr. McDaniel's 1996 colleague assessment forms, rather than summaries of these forms, we believe that this appeal raises a number of unresolved issues which warrant adjudication in an open records decision.
We begin by noting that KRS 61.878(3) clearly obligates public agencies, including Somerset Community College, to disclose to their employees any record which relates to them. That statute provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
Mr. McDaniel is entitled to inspect and receive copies of records relating to him, including assessments and evaluations. See, e.g. , 96-ORD-27; 96-ORD-16; 96-ORD-8; 95-ORD-97; 95-ORD-37; 94-ORD-24; 94-ORD-9; 93-ORD-74; 93-ORD-50. There is no legal authority for the position originally taken by Somerset Community College. The University, recognizing this, attempted to remedy the college's error. In the interest of avoiding future appeals of this nature, we encourage the University to instruct its employees, and particularly those in its community college system, on the requirements of the Open Records Act, both procedural and substantive, and to remind them of the requirement that the agency's response "shall be issued by the official custodian or under his authority." KRS 61.880(1).
With respect to the procedural requirements of the Act, we note that although Somerset Community College responded to Mr. McDaniel's request within three working days, as mandated by KRS 61.880 (1), he did not receive the records he sought until eleven work days had elapsed. It is unclear whether his request was misdirected, and the college delayed forwarding it to the official custodian, or the college simply elected to proceed without the official custodian's intercession, and the University learned of the request only upon receipt of Mr. McDaniel's attorney's inquiries. Whatever the cause of the delay, we remind the parties of the importance of providing not only a timely response, but timely access to public records. The Open Records Act contemplates records access within three working days. Any delay in access which exceeds three working days must be accompanied by "a detailed explanation of the cause . . .," and a statement of "the place, time, and earliest date on which the public record will be available for inspection." KRS 61.872(4).
Finally, we note that the University did not fully comply with Mr. McDaniel's request. Mr. DeBin denied that portion of his request relating to written evaluations or assessments from colleagues for his four year progress to tenure review on the basis that no such records exist. The Attorney General has long recognized that a public agency cannot afford a requester access to records which do not exist. See, e.g. , OAG 83-11; OAG 87-54; 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. 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, we remind the University that since the Open Records Act was amended in 1994, this office has applied a higher standard of review relative to denials based on the nonexistence of the requested records. 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 records; for example, no such records exist because none of Mr. McDaniel's colleagues evaluated him for his four year progress to tenure review, or the University is not required to maintain copies of Mr. McDaniel's colleagues' evaluations relative to his four year progress to tenure review, and therefore no colleague evaluations were generated. In some instances, the explanation offered may warrant this office in referring the matter to the Department for Libraries and Archives for additional inquiries under the Chapter 171 Archives and Records Act. Although we do not believe that this appeal merits referral to the Department, we find that the University failed to met its burden of proof in explaining why the colleague evaluations for Mr. McDaniel's four year progress to tenure review do not exist. 1
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.
Footnotes
Footnotes
1 In a belated supplemental response submitted just before this decision was issued, Mr. DeBin attempted to explain why no colleague evaluations for Mr. McDaniel's four year progress to tenure review exist. Responding to Mr. McDaniel's assertion that Mr. McGriff solicited and received evaluations, Mr. DeBin stated: Dr. McGriff reported that he did in fact send out the November 18, 1996 memorandum, attached to Mr. McDaniel's January 22 letter, which had a due date of November 20th. (A copy is enclosed for your review.) On November 20th, Dr. McGriff had received only two or three written responses to this memorandum. Dr. McGriff then reconsulted the University's Regulations. Dr. McGriff noted that written responses in fact were not required, only consultation with tenured faculty. Thus, he proceeded to consult orally with the eleven tenured faculty members in Mr. McDaniel's division. Based on those oral discussions, Dr. McGriff prepared the Progress Toward Tenure Review which has been supplied to Professor McDaniel. Dr. McGriff stated that because the University's regulations do not require written consultations, he did destroy the two or three handwritten responses that he had received. Accordingly, there were no records to supply to Mr. McDaniel, as stated in my letter to you dated January 15th. An explanation of this nature should have been included in the University's original open records response.