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 Spencer County Public Schools violated the Open Records Act in responding to Judy C. Nation's April 26 and May 4, 1999, requests to inspect her daughter, Emily Erin Nation's, permanent student folder from 1986, when she entered kindergarten, to the present. For the reasons that follow, we find that the Spencer County Public Schools did not violate the Act in failing to produce for inspection records which apparently do not exist, or have been misplaced or destroyed, but that it failed to meet its burden of proof relative to the nonexistence or disappearance of these records. We have therefore referred this matter to the Department for Libraries and Archives for inquiry under Chapter 171 of the Kentucky Revised Statutes.
In a response dated May 11, 1999, Spencer County Public Schools Superintendent David Nedros notified Ms. Nation that "the information [she had been] given from Emily's folder was complete." That information consisted of 12 pages which she received on March 9, 1999, and 16 pages, 12 of them duplicates, which she received on April 20, 1999. Spencer County High School's records secretary confirmed that, having searched all record sources that the Guidance Office maintains, no other records relating to Emily Nation could be located. Shortly after she received Superintendent Nedros's response, Ms. Nation initiated this open records appeal.
In a supplemental response submitted to this office on June 7, 1999, Robert L. Chenoweth, counsel for the Spencer County Public Schools, elaborated on the school system's position. Mr. Chenoweth explained:
The Spencer County Schools has fully responded to Ms. Nation's request and complied in full with that request. As of this date, Ms. Nation has been given two complete copies of her daughter's permanent student records. There exist no more records concerning her daughter that have not been released to her. Therefore, there has been no refusal by the Spencer County Schools to release any records. If she is aware of records that do not appear in the folder, she is welcome to present those to the Superintendent of the Spencer County Schools, David Nedros, for consideration of inclusion in her daughter's file.
Mr. Chenoweth noted that Ms. Nation has the right to contest the status of her daughter's school records under both the Federal Family Educational Rights and Privacy Act, 20 USC § 1232g, and the Kentucky Family Education Rights and Privacy Act, KRS 160.730.
This office has long recognized that a public agency cannot furnish access to records which do not exist or cannot be located. 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 or disappearance 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 or disappearance 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). The Spencer County Public Schools fails to offer any explanation for the paucity of records in Emily Nation's permanent file.
KRS 160.700(3) defines the term education records as:
data and information directly relating to a student that is collected or maintained by educational institutions or by a person acting for an institution including academic records and portfolios; achievement tests; aptitude scores; teacher and counselor evaluations; health and personal data; behavioral and psychological evaluations; and directory data recorded in any medium including handwriting, magnetic tapes, film, video, microfiche, computer-generated and stored data, or data otherwise maintained and used by the educational institution or a person acting for an institution.
In the absence of any explanation for the apparent nonexistence of such records in Emily's file, we conclude that the Spencer County Public Schools failed to satisfy its statutory burden of proof. In these cases, the Attorney General is warranted in referring his concerns to the Department for Libraries and Archives for additional inquiry under Chapter 171, and Ms. Nation's appeal is so referred.
Mr. Chenoweth also identifies another mechanism by which Ms. Nation may seek redress for her grievance, and that is by challenging the contents of her daughter's record under the state and federal laws relating to student education records, namely the federal Family Educational Right and Privacy Act, and the Kentucky Family Education Rights and Privacy Act. Ms. Nation may wish to contact the agencies responsible for enforcement of these statutes.
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.