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 University of Kentucky violated the Open Records Act in responding to a series of open records requests for a copy of the management audit of Prestonsburg Community College. These requests were submitted by John D. Sammons. For the reasons set forth below, we find that the University properly denied Mr. Sammons's request.
On December 10, 1997, January 15, 1998, and February 27, 1998, Mr. Sammons requested a copy of "the recent management audit of Prestonsburg Community College conducted by Scott McKenzie under the direction of the University of Kentucky." In response to each of these requests, the University, through its custodian of records, George J. DeBin, advised Mr. Sammons that "an audit report had not been prepared," and that therefore there were no records responsive to his request. Following the third denial of his open records requests, Mr. Sammons initiated this appeal.
In a follow-up letter to this office dated March 16, 1998, Mr. DeBin elaborated on the University's position. He explained that although an on-site audit was conducted at the College by the University's Internal Audit office, no audit report was completed. Continuing, Mr. DeBin observed:
Because the audit report was not completed prior to the January 14, 1998 effective date of HB 1 of the 1997 First Extraordinary Session of the General Assembly (the Kentucky Postsecondary Education Improvement Act of 1997), and further because Prestonsburg Community College is now under the management of the Kentucky Community and Technical College System, it is not anticipated that the University of Kentucky will issue such an audit report.
In closing, Mr. DeBin reaffirmed that "there simply is no record to be provided to Mr. Sammons."
It is well-established that a public agency cannot afford a requester access to a record which does not exist. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17; 97-ORD-103. In general, it is not our duty to investigate in order to locate documents which the requesting party maintains exist, but which the agency states do not exist.
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 requirement 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).
In his follow-up letter to this office, Mr. DeBin explained that although an audit of Prestonsburg Community College was undertaken in 1997, it was still underway on January 14, 1998, when management of the college passed to Kentucky Community and Technical College System. Therefore, the audit was not completed, and an audit report was not generated. The University offers a reasonable explanation for the nonexistence of the requested record. 94-ORD-140; 97-ORD-185. In the absence of concrete evidence to the contrary, this office has no reason to doubt the University's explanation.
While there may be occasions when, under the mandate of KRS 61.8715, the Attorney General refers an open records appeal and decision to the Department for Libraries and Archives for further inquiry under Chapter 171, we do not believe that this appeal warrants additional inquiries. The University has satisfied its statutory burden of proof by explaining why the audit was not completed, and why the audit report does not exist. We find no error in the University's response to Mr. Sammons's 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.