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 its response to Amita Rastogi's March 3, 1998, records request. Many of the issues raised in this appeal were addressed in an earlier open records decision involving the same parties.
98-ORD-61 (copy enclosed). The narrow focus of this appeal is whether the University of Kentucky improperly responded to Dr. Rastogi's request for records relating to a conciliation agreement between the Department of Labor and the University. With respect to all other issues raised in her April 2, 1998, letter to this office, we find that these issues were resolved, within the limited scope of the Attorney General's authority, in 98-ORD-61. For the reasons that follow, we find that although the University's original response to request one was deficient, that deficiency was attributable to a miscommunication between the parties which was corrected in its April 3, 1998, supplemental response. We further find that the University failed to meet its burden of proof in explaining why records which were responsive to requests three through six do not exist. Like the University, we do not understand what Dr. Rastogi seeks in request number two. We fail to see how the University can produce records which have been destroyed.
On March 3, 1998, Dr. Rastogi requested access to various records pertaining to the March 18, 1997, conciliation agreement between the U. S. Department of Labor, Office of Federal Contract Compliance Programs, and the University of Kentucky. Paragraph 21 of that agreement contained the following statement of violation and agreed remedy:
VIOLATION : On at least one occasion, UK's AAP did not contain adequate support data on applicant flow, by race, sex, as required by 41 CFR 60-2.12(m), in that UK's Medical Center had destroyed several applications which should have been maintained as part of their AAP support data. UK destroyed application of individuals deemed as "nonqualified" for externally filled positions. These applications were not included in support data submitted as part of their AAP.
REMEDY : On March 9, 1995, UK agreed to develop a recordkeeping system to maintain support data on applicant flow, including establishing a maintenance system which includes retainment of all applications relating to the past and current year AAPs. UK agreed to provide each department with a written list of all required support data to ensure this violation does not occur in the future.
Upon learning of this agreement, Dr. Rastogi requested copies of:
1. The record that is the published job or position announcement for each position for which records were improperly destroyed, within the meaning of the violation described in numerical item 21 of the Conciliation Agreement, quoted above.
2. Each of the destroyed records that have been identified by reason of the description in item 21 of the Conciliation Agreement of their destroyed, nonexistent state.
3. [A] copy of the document that is the adequate and proper record of the essential transaction of notification required in KRS 171.720 that was sent to the KDLA to notify it of the improper destruction of the above mentioned records, and which also protects the legal and financial interests of UK and of the persons whose records were improperly destroyed as mandated in KRS 171.640.
4. The document that is the adequate and proper record of the essential transaction of recovery of the above unlawfully removed records or other redress as may be provided by law as mandated by KRS 171.720, and which protects the legal and financial interests of UK and of the persons whose records were improperly destroyed as mandated in KRS 171.640.
5. The record required by KAR 725 1:010.2(2) [sic] that constitutes the required record of the destruction of the unlawfully lost or destroyed personnel records and that notes the authority under which the destruction occurred.
6. The annual report record required by KAR 725 1:010.2(2) [sic] wherein the responsible officer of the UK reported to the KDLA on the unlawful destruction of these personnel records. If there is no annual report by this officer to the KDLA that specifically notes the unlawful destruction of these specific personnel records, please so state.
In a response dated March 9, 1998, George J. DeBin, official records custodian for the University of Kentucky, denied Dr. Rastogi's requests, advising her that no records existed which satisfy her request. He explained:
Associate Vice President Nancy Ray provided the following information. The Affirmative Action office was never informed by the Department of Labor of any specific job application or incident which constituted an "occasion" which led to alleged violation 21. Accordingly, we have no records to provide to you in response to this request.
Shortly thereafter, the U. S. Department of Labor, Office of Federal Contract Compliance Program, contacted University of Kentucky President Charles Wethington. On behalf of the Department of Labor, Carol Dawson, assistant district director for the Louisville Area Office, advised President Wethington:
On March 13, 1998, our Louisville Office received a FAXed copy of Mr. George DeBin's March 9, 1998 letter to Ms. Amita Rastogi, M.D.. This letter attempts to respond to Ms. Rastogi's Open Records request. Mr. DeBin's response included a statement which should be clarified.
Mr. DeBin states: "Associate Vice President Nancy Ray provided the following information. The Affirmative Action office was never informed by the Department of Labor of any specific job application or incident which constituted an "occasion" which led to alleged violation 21. Accordingly, we have no records to provide to you in response to this request."
The Office of Federal Compliance Programs (OFCCP) has documentation which reveals the information provided to Dr. Rastogi is inaccurate. On March 17, 1995, I, as a Senior Compliance Officer (SCO), and Compliance Officer Alvin Stanley requested applications for several faculty hires. Among other files, requests were made for the applications for positions filled by Alexander Tzouanakis (Department of Preventive Medicine), Scott Morehead (Department of Internal Medicine), and Thomas Arcury (Department of Preventive Medicine). OFCCP's request was provided in writing to Ms. Nancy Ray. This request was forwarded to the Medical Center for retrieval of the files. Dr. Phyllis Nash, Vice Chancellor for Academic and Student Affairs, UK Medical Center responded to the requests Dr. Nash personally asked to meet with me. Dr. Nash explained that the Center had not retained the applications for the three positions listed above. She added there was no discriminatory intent by the Medical Center. Dr. Nash noted this incident was isolated and she would ensure the Medical Center's full compliance with records retention in the future. This information was substantiated in the August 9, 1996 letter from Edmund J. Benson, indicating, "? the Associate Vice President contacted the Vice Chancellor for Academic Affairs for the Medical Center and clarified the need to retain all applications.
The above information substantiates that the Affirmative Action office (Nancy Ray) had been appropriately notified by the Department of Labor which missing specific job applications were improperly destroyed, constituting violation # 21 of the Conciliation Agreement (CA). OFCCP understood UK signed the CA with a full understanding of each of the violations and remedies.
This information should assist Mr. DeBin in correctly responding to Dr. Rastogi's request for records relating to the OFCCP compliance review.
Following receipt of this letter, Mr. DeBin issued a supplemental response to Dr. Rastogi's request in which he furnished her with copies of records which were responsive to request one of her March 3 request. He did not supplement the University's response to requests two through six, or attempt to offer any explanation for the apparent nonexistence of records identified in these requests.
On April 20, 1998, Mr. DeBin elaborated on the University's position in a letter to this office. Mr. DeBin stated:
Dr. Rastogi has requested that you "review" the University's March 9, 1998 response to her to determine whether there was "misrepresentation" by me[.]
I do not believe that there was any "misrepresentation" by this office to Dr. Rastogi. The point is that the Affirmative Action office was never informed in writing during the pendency of the OFCCP audit of which specific missing applications the OFCCP used to formulate the generalized OFCCP charge. When the Affirmative Action Office (which coordinated the OFCCP audit) was asked about the specifics in our search for responsive records, personnel in that office did not recall specific cases which lead to the OFCCP charge. When the University received that information from OFCCP in writing, we followed-up right away with Dr. Rastogi, pursuant to the dictates of 95-ORD-165 (page 8). I do not believe there was any "misrepresentation" in my response to Dr. Rastogi about the records she requested. In any event, she now has the records she requested, so the appeal should be moot.
Again, Mr. DeBin did not comment on the nonexistence of the records identified in requests two through six.
It is the opinion of this office that the University of Kentucky's response to Dr. Rastogi's March 3 open records request was partially violative of the Open Records Act. The University did not violate the Act in its response to her request for job and position announcements associated with the destroyed records, or her request for the destroyed records (requests one and two). The University did, however, fail to meet its burden of proof in explaining the nonexistence of records documenting notification to the Kentucky Department for Libraries and Archives of the improper destruction of records (requests three, four, five, and six).
Although the University originally denied Dr. Rastogi's request for "published job or position announcement for each position for which records were improperly destroyed, " it subsequently furnished her with these records after receiving additional and necessary information from the Department of Labor. In its first response, the University advised her that the Affirmative Action office was not "informed by the Department of Labor of any specific job application or incident ? which led to alleged violation 21." The University later explained that that office was not informed in writing during the Department's review which specific missing applications the Department used as a basis for the charge, and office staff did not recall specific cases. Immediately after the Department of Labor notified the University of the names of the applicants whose application were improperly destroyed, the University furnished her with the available position announcements.
We believe that the University offered a reasonable explanation for its inability to originally produce the records identified in request one of Dr. Rastogi's March 3 open records request. While greater efforts might have been undertaken to ascertain the identities of the applicants whose records were destroyed, as, for example, by contacting the Department of Labor, we do not believe that this omission constitutes a violation of the Open Records Act. Nor do we believe that the University's failure to produce the "destroyed records" constitutes a violation of the Act. The University acknowledged that these records were improperly destroyed by entering into a conciliation agreement with the Department of Labor. It did not, nor could it, present those records to the Department in defense of its records keeping practices. How, then, can it produce those records for Dr. Rastogi? We find no error in its denial of request two of her March 3 records application.
We do, however, question the University's failure to produce, or explain its inability to produce, records documenting its compliance with KRS 171.720 and 725 KAR 1:010 relative to the improper destruction of the applications. The conciliation agreement into which it entered stated that "UK destroyed application of individuals deemed as 'non-qualified' for externally filled positions." KRS 171.720 provides:
The head of each state and local agency shall notify the department [for Libraries and Archives] of any actual , impending or threatened unlawful removal, defacing, alteration or destruction of records in the custody of the agency that shall come to his attention , and with the assistance of the department shall initiate action through the Attorney General for recovery of such records as shall have been unlawfully removed and for such other redress as may be provided by law.
(Emphasis added.) Similarly, 725 KAR 1.010 Section 2(2) states that an agency records officer:
shall keep a record of the destruction of public records, noting the authorization for said destruction and the amount of records destroyed. He shall make an annual report of this record to a designated superior and to the Director of the Public Records Division [of the Department of Libraries and Archives].
The University maintains that no records exist which satisfy requests three through six of Dr. Rastogi's request.
This office has repeatedly recognized:
[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, ? 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[.]
97-ORD-17, p. 3. It is our opinion that with respect to records documenting the University of Kentucky's compliance with KRS 171.720 and 725 KAR 1:010 Section 2(2), the University failed to satisfy its statutory burden of proof by explaining why these records do not exist. In the absence of any explanation for the nonexistence of these records, the Attorney General is warranted in referring this matter to the Department for Libraries and Archives for inquiry under Chapter 171, and this portion of Dr. Rastogi's appeal is so referred.
With respect to all other issues which Dr. Rastogi raises in her April 2 letter of appeal, we refer her to 98-ORD-61. As noted, these issues were resolved, within the limited scope of the Attorney General's authority, in that appeal. Again, we refuse to be drawn into a debate on the issue of what documentation of essential transactions the University must make, and what methods for conducting a search the University must employ. We remind the parties of the views expressed by the Attorney General in 95-ORD-18 relative to records creation:
It is abundantly clear that the shared intent contemplated by the legislature in enacting KRS 61.8715 is confined to records management and maintenance. There is no reference in the statute to records creation. We decline the invitation to invade the prerogative of public agencies in determining, "in accordance with standards, rules and regulations prescribed by the Department for Libraries and Archives," what records they must create. KRS 171.640. We therefore affirm those principles articulated in OAG 78-231 and subsequent opinions relative to records creation, and conclude that, KRS 61.8715 notwithstanding, the Attorney General is not empowered to order an agency to create records, or to declare its failure to do so a subversion of the intent of the Open Records Act. To the extent that any recent decisions construing this provision leave this question unresolved, this decision is intended to be conclusive.
95-ORD-48, p. 4. We affirm that view today.
Similarly, we reaffirm our view on the issue of the adequacy of the University's search. On this subject, the Attorney General has opined:
In our view, the Open Records Act does not require an agency to conduct "an exhaustive exhumation of records," Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D. N.Y. 1983). It is, however, incumbent on an agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, supra at 775. Thus, the agency must expend reasonable efforts to identify and locate the requested records. And, if the documents do exist, and the public agency cannot locate them, the agency's "good faith should not be impugned unless there was some reason to believe that the supposed documents could be located without an unreasonably burdensome search." Goland v. Central Intelligence Agency, 607 F.2d 339, 353 (D.C. Cir. 1979). In assessing the adequacy of an agency search, we "need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).
95-ORD-96, p. 7. As long as the University, or any other public agency, establishes that it employed the search method which could reasonable be expected to produce the records requested, this office will find no error.
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.