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 Cabinet for Health Services violated the Open Records Act in responding to William T. Trigg's February 9, 1999, request for various records relating to the Cabinet's investigation into Mr. Trigg's allegations of mismanagement in the Cabinet's Division of Licensing and Regulation. For the reasons that follow, we find that the Cabinet's response was only partially consistent with the Open Records Act.
The records to which Mr. Trigg requested access were identified in his February 9 request as follows:
1. The report generated as a result of the Cabinet for Health Services' investigation which the Cabinet agreed to conduct in an agreement executed with Mr. Trigg on March 14, 1997, releasing the Cabinet from a Whistleblower action;
2. Records of interviews conducted by the Cabinet indicating who was interviewed, what questions were asked, and how the individuals interviewed responded;
3. Documents reviewed that affected the Cabinet's final determination;
4. Documents sent by Ellen Hesen, general counsel, to Cabinet Secretary John Morse, and others, containing a summary of the allegations, information about the progress of the investigation, investigative findings, and any recommendations for corrective action.
On behalf of the Cabinet, Ms. Hesen responded to Mr. Trigg's request on February 15, releasing "all documentation relative to [his] allegations and settlement in 1997." This appeal followed. 1
Upon receipt of this office's notification of Mr. Trigg's records appeal, Ms. Hesen submitted a supplemental response in which she elaborated on the Cabinet's position. Ms. Hesen explained:
The Cabinet for Health Services has been in the process of investigating allegations leveled by Mr. Trigg on the alleged mismanagement of the Office of Inspector General. When Mr. Trigg's request was received, the Office of Program Support had completed an initial investigative report into his allegations. This information was transmitted to Mr. Trigg in response to his initial request.
As you may be able to tell from his letter of appeal, Mr. Trigg is frustrated by both the focus and progress of the Cabinet's efforts to investigate serious allegations he has leveled against the Office of Inspector General. The investigation of the charges is not yet complete, and the Cabinet's efforts to complete this task and to focus on the allegations made continue. In its responses to Mr. Trigg, the Cabinet has consistently expressed a willingness to be as open as possible in providing information to him. The agency's efforts to complete the investigation and to be responsive to Mr. Trigg will continue.
Ms. Hesen furnished Mr. Trigg with a copy of this letter.
It is the opinion of this office that the Cabinet's response was procedurally deficient but substantively correct. Although the Cabinet erred in failing to advise Mr. Trigg that specific records identified in his request do not exist and therefore cannot be produced, it complied in all other material respects by releasing all existing records which are responsive to that request.
This office has consistently held that a public agency's response is deficient under the Open Records Act if it fails to advise the requesting party whether specific records identified in his or her request exist. OAG 86-38; OAG 90-26; OAG 90-69; OAG 91-101; 94-ORD-15; 96-ORD-101; 96-ORD-185; 97-ORD-180; 98-ORD-103; 99-ORD-42. In OAG 86-38, we construed the obligation of the agency relative to a request to inspect records, commenting:
KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested. If the documents exist and inspection is denied, you should list each document which the city will not permit the requesting party to inspect and state how the exception to public inspection relied upon applies to the particular document withheld from inspection.
OAG 86-38, p. 3. Echoing this view, in OAG 90-26 we categorically stated, "If a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4.
The Kentucky Court of Appeals confirmed this position in Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 857 (1996), holding:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
The court concluded that a "limited and perfunctory response" to a request did not "even remotely comply with the requirements of the Act--much less . . . amount[] to substantial compliance." Id.
In its February 15 response, the Cabinet failed to advise Mr. Trigg that no other records that are responsive to his request exist. Since no final report has been generated, and no final determination made, records satisfying categories one and three of his request do not exist. In this case, it is incumbent on the Cabinet to "specifically so indicate." OAG 90-26, p. 4. The same is true of records of interviews and records prepared by Ms. Hesen "containing a summary of allegations, information about the progress of the investigation, investigative finds, and any recommendations for corrective action" which were sent to Secretary Morse. Under the line of authority cited above, the Cabinet's failure to advise the requester that responsive records do not exist constitutes a violation of KRS 61.880(1). We urge the Cabinet for Health Services to bear these observations in mind in responding to future open records requests.
Turning to the substantive issue in this appeal, we find that the Cabinet fully discharged its obligation under the Open Records Act by disclosing all existing records which satisfied Mr. Trigg's request. In 93-ORD-51, this office recognized that a public agency cannot afford a requester access to documents which do not exist because they have not been created. In general, it is not our duty to investigate in order to locate documents which the requesting party maintains exist, but which the public agency states do not exist.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants additional inquiry.
The Cabinet's Office of Program Support has completed an initial investigation, and generated a report that was released to Mr. Trigg. Nevertheless, the Cabinet's investigation is ongoing. No final determination has been made, and no final report generated. The issue of the Cabinet's delay in concluding the investigation cannot be resolved in an open records appeal. In the absence of evidence to the contrary, we must assume the truthfulness of the Cabinet's assertions. Its supplemental response was proper and consistent with the Open Records Act insofar as it could not make available for inspection records which apparently do not exist.
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.
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