Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department for Libraries and Archives violated the Open Records Act in denying Amita Rastogi's January 19, 1998, request for a copy of the "'certification' referred to in KRS 171.520 that is the 1987 certification for the University of Kentucky." On behalf of the Department, Public Records Division Director Richard N. Belding responded to Dr. Rastogi's request on January 22, 1998, advising her as follows:
KRS 171.520(2) required the Department to prepare a plan for a comprehensive records management system for state government, which was to include a provision for a certification program. The July 1987 date to which you refer was the date the comprehensive plan was due to the Legislative Research Commission and the Office of Policy and Management. The plan did provide a recommendation for implementation of such a certification program, but a formal program has not yet been implemented. Thus, the information you request cannot be provided.
It is from this response that Dr. Rastogi appeals.
In a follow-up letter to this office, Mr. Belding amplified on the Department's position. He explained that KRS 171.520 (2):
directed that the Kentucky Department for Libraries and Archives should make provision for such a certification program in the plan for a comprehensive records management system for Kentucky state government. The plan, in turn, was designed to better carry out the purposes of subsection (1) of that statute [directing the Department to prescribe policies and principles to be followed by state and local agencies in the conduct of their records management programs] and was a product designed to be submitted to the Legislative Research Commission. KDLA submitted that plan, as required under the terms of this subsection, and identified a records management certification program as part of its recommendations.
Mr. Belding indicated that the Department has been unable to implement a formal certification program because of "limited fiscal and staff resources." Therefore, a records management certification for the University of Kentucky does not exist and cannot be produced.
Before we undertake an analysis of Dr. Rastogi's appeal, we must again remind her of the narrow scope of our authority under the Open Records Act. As we explained to her in a recent decision:
Our role in adjudicating the open records dispute between these parties is a limited one. Pursuant to KRS 61.880(2)(a), the Attorney General is charged with the duty to review Dr. Rastogi's request and the [agency's] response, and issue a written decision stating whether the [agency]violated the provisions of KRS 61.870 to 61.884.
97-ORD-185, p. 6. Simply stated, an open records appeal to the Attorney General is not the appropriate forum for determining the proper construction of KRS 171.520. We are not empowered to determine if KRS 171.520 includes a provision for certification or de-certification of agencies for compliance with Department policies subsequent to 1987, or if KRS 171.520 contemplates the creation of publicly accessible records for agencies that came into existence after 1987. We confine our analysis to the question of whether the Department violated the Act in denying Dr. Rastogi's request on the basis that no record exists which satisfies her request. In our view, the Department complied with the Act, and fully discharged its obligations relative to her January 19 request.
In a recent open records decision, the Attorney General observed:
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.
97-ORD-116, p. 1, 2. Thus, in 94-ORD-140, we affirmed the Ohio County Sheriff's Department's denial of a request for investigative records on the basis the records did not exist when the sheriff explained that his office did not conduct the investigation. Conversely, in 97-ORD-103, 97-ORD-116, and 97-ORD-146, we held that because the public agencies failed to offer even a minimal explanation for the nonexistence of records which were apparently required by law, we could not determine if the agencies met their statutory burden of proof under KRS 61.880(2)(c).
This appeal is more closely akin to 94-ORD-140 insofar as the Department offered, what is in our view, a reasonable explanation for the nonexistence of a certification document reflecting the University of Kentucky's compliance with its records management policies. As Mr. Belding explained, the Department has been unable to implement a formal certification program because of limited fiscal and staff resources. Therefore, no such record exists. We find no error in the Department's response to Dr. Rastogi's request.
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.