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 partially denying William Jacobs's request for correspondence generated by and for former members of the University's Board of Trustees. For the reasons that follow, we conclude that although the University cannot be said to have violated the Act in denying Mr. Jacobs's request because the disputed records are not "prepared, owned, used, in the possession of, or retained by a public agency, " namely the University, we believe that the question of whether those records should be managed and maintained as public records merits further inquiry, and that question is referred to the Department for Libraries and Archives.
On September 11, 1998, Mr. Jacobs requested access to:
a. Correspondence issued by the previous Board Chairman to each of those Board members who are not at this time Board members[;]
b. Correspondence issued by any of those members to any other of those members that were [sic] issued during the tenure of the previous Board Chairman[;]
c. Each record made by each of those members to him or herself for his or her's [sic] use and reference in the conduct of their duties as Board members[;]
d. Correspondence sent by any of those Board members to persons external to the University, including but not limited to records that notify or describe to the citizen any final actions taken by the Board.
Although the University of Kentucky furnished Mr. Jacobs with copies of records which were responsive to request "a," and which were maintained in the President's office, the University denied requests "b," "c," and "d," advising him as follows:
We searched the file of each Board member as maintained in the President's office. This is the location where any such documents issued by such Board members would be located if in possession of the University. No responsive documents were found.
This appeal followed.
In a supplemental response directed to this office, records custodian George J. DeBin elaborated on the University's position. The question Mr. Jacobs raises, Mr. DeBin observed:
relates to whether correspondence of individual Board members is a "public record" where the correspondence is not in possession of the University but only the individual Board member. Mr. Jacobs argues that Board members should be required to file their correspondence with the University so that such correspondence can be maintained and accessed by the public. His argument starts with the wrong premise: that the "office of the Official Custodian is responsible for the maintenance and keeping of records created by members of the Board of Trustees." Public records under the Open Records Act are defined as records that are "prepared, owned, used, in the possession of, or retained by a public agency. " The records sought by Mr. Jacobs in his request simply do not meet any of the criteria for being a "public record. " Individual Board members are not, in their capacity as Board members, public officers. See KRS 164.150. (Of course, if the University as a public agency does possess such records, they would become "public records" under the Act. That is not the case here, since the Board members had not provided copies to the President's Office.)
Mr. DeBin thus confirmed that there were no records, other than those already released, that were responsive to Mr. Jacobs's request.
Mr. Jacobs responds that the term "'public officer' is not the operational phrase in the Open Records definitions, since KRS 61.870(1)(a) refers to 'every state or local government officer .'" (Emphasis added by Mr. Jacobs.) Having failed to establish that the trustees are not "governmental officers" for purposes of the Open Records Act, Mr. Jacobs maintains that the University "failed to sustain its burden of proof as to why these 'governmental records' that are public records are exempt from disclosure under KRS 61.878." Mr. Jacobs also challenges the adequacy of the University's search, questioning why Mr. DeBin did not inquire of former trustees who are still employed by the University if any responsive records exist in their own files, and why he did not make a search through archived records.
We share Mr. Jacobs's concern that correspondence generated by and for former members of the University's Board of Trustees often involves matters of public concern, and is ostensibly at least, public in character, having been authored by or addressed to, individuals who, if not public officers themselves, serve a public agency. Nevertheless, we are not empowered to declare, in the context of an open records appeal, that the University's failure to manage and maintain that correspondence as a public record constitutes a violation of the Open Records Act.
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records, the Act regulates access to existing public records. KRS 61.8715. Our decisions in open records disputes are therefore generally limited to two questions: whether the public agency prepared, owned, used, possessed, or retained the requested record, and, if so, whether the record is subject to public inspection. Thus, in an early opinion, the Attorney General observed:
There are two legal thresholds which must be crossed by a person seeking to compel access to documents under the Open Records Law, KRS 61.870 to 61.884; (1) the custodian of the records must be a "public agency" as defined in KRS 61.870(1), and (2) the documents to be inspected must be "public records" as defined in subsection (2) of the same statute. Unless and until those thresholds are crossed it is not necessary to consider the provisions of the law pertaining to exemptions (KRS 61.878) or pertaining to an unreasonable burden in producing voluminous public records (KRS 61.872(6)).
OAG 82-27, p. 3 (overruled on other grounds in OAG 82-277). In the appeal before us, the "custodians" of the disputed records are former members of the University of Kentucky's Board of Trustees. These individuals cannot be characterized as public (or governmental) officers 1 for purposes of the Open Records Act, in view of the express language found at KRS 164.150, and therefore do not fall within the parameters of KRS 61.870(1)(a). The disputed records themselves are not public records, as defined in KRS 61.870(2), because they are not "prepared, owned, used, in the possession of or retained by a public agency. " Prior decisions of this office support this view.
In 96-ORD-64, the Attorney General held that records of out-of-pocket expenses incurred by a private law firm operating under a professional services contract with a public agency were not public records for purposes of the Open Records Act, but were instead records of the law firm, which was not a public agency. On this basis, we affirmed the agency's denial of an open records request for the records, observing:
In 95-ORD-125, this office held that the Louisville Firefighter Pension Fund properly denied a request for confirmation tickets reflecting investment transactions made on its behalf by a private corporation with which the Fund had contracted to manage its assets. Because the confirmation tickets were neither possessed nor used by the Fund, we concluded that they could not be characterized as "public records" as defined in KRS 61.870(2). At page 6 of that decision, we reasoned:
See also, 96-ORD-41 (holding that Department of Military Affairs properly denied request for records relating to vending services at an air national guard facility where those records were prepared by, and in the possession of, a private corporation, and were never in the Department's possession).
In a similar vein, the Court of Appeals recently held that records of a private insurance company undergoing rehabilitation were the private records of the company despite apparent state involvement in the rehabilitation process. Kentucky Central at 335. The court expressly stated that "the company's records should not lose their private status simply because the rehabilitator has used, possessed, or has access to them." Id.
This position is generally consistent with the standard articulated by the United States Supreme Court in Forsham v. Harris, 445 U.S. 169, 186, 100 S. Ct. 978, 987, 63 L. Ed. 2d 293 (1980), and Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 152, 100 S. Ct. 960, 969, 63 L. Ed. 2d 267 (1980). In these opinions, the Court held that "an agency must first either create or obtain a record as a prerequisite to it becoming an 'agency record' within the meaning of the [Freedom of Information Act, 5 USCS § 552]." Forsham at 63 L. Ed. 2d 305. The Court rejected the notion that a public agency's right of access, and its right to obtain custody of records, brought those records within the reach of the Act, concluding that "FOIA applies to records which have been in fact obtained, and not to records which merely could have been obtained." Forsham at 63 L. Ed. 2d 307.
Although we concede that Kentucky's Open Records Act does not track the language of the federal act, the laws are identical in at least one significant respect: Neither law imposes a duty on the public agency to create records. Thus, the Supreme Court's holding that "by ordering [a public agency] to exercise its right of access, we effectively would be compelling the agency to 'create' an agency record since prior to that exercise the record was not a record of the agency[,]" applies with equal force to agencies governed by the Open Records Act. Forsham at 63 L. Ed. 2d 308. Accordingly, we find that [the requester] has not crossed the two legal thresholds identified in OAG 82-27; the custodian of the records he seeks is not a "public agency, " and the documents he wishes to inspect are not "public records. "
Kentucky's Open Records Law applies only to records which are in existence, and in the possession or control of a public agency. It does not impose an obligation on agencies to create, procure, or retrieve a record to accommodate a request. This is not to say that a public agency can somehow secret away public records on private premises, and thus avoid the requirements of the Open Records Act. See, e.g., 95-ORD-126. Our holding is limited to the facts presented in this appeal. Because the records [the requester] seeks are not prepared, owned, used, in the possession of or retained by the [agency], they are not governed by the Open Records Act.
96-ORD-64, p. 2-4. We believe that this decision is dispositive of the appeal before us. Like the requester in 96-ORD-64, Mr. Jacobs has not crossed the two legal thresholds established in OAG 82-17. 2
Nevertheless, we believe that this appeal raises records management issues, and we have referred these issues to the Department for Libraries and Archives for additional inquiry as that agency deems appropriate. It is for Libraries and Archives, and not the Attorney General, to assist the University in determining, with particular reference to correspondence by and for former members of the Board of Trustees, whether it is fully discharging its duty to make and preserve records containing "adequate and proper documentation of the organizational functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish information necessary to protect the legal and financial rights of the government and of persons directly affected by the agency's activities." KRS 171.640.
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.
Footnotes
Footnotes
1 Whether the terms governmental officer and public officer, as they appear in KRS 61.870(1)(a) and KRS 164.150, are or are not functional equivalents, and whether KRS 164.150 does or does not extend to records access issues arising under KRS 61.870 to 61.884, are questions which require subtle interpretations of the law that should be made by the Court. OAG 80-54, p. 4.
2 Because we conclude that the disputed records cannot be characterized as public records for purposes of the Open Records Act, we do not reach the issue of the adequacy of the University's search.