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 William C. Jacobs's June 8, 1999, and June 22, 1999, 1 requests for copies of records relating to a 1971 action of the University of Kentucky Board of Trustees changing Dr. Charles Wethington's title from "Assistant Professor of Education" to "Associate Professor with Tenure. " For the reasons that follow, we find that the deficiencies in the University's original responses to Mr. Jacobs's requests were cured by its supplemental response to Mr. Jacobs's appeal, in which it offered a reasonable explanation for its unproductive search and the nonexistence of the records relating to the 1971 action, and that its search was, in all respects, adequate. We therefore affirm the University's actions.
Upon review of the published minutes of the Board's November 15, 1971, meeting, reflecting Dr. Wethington's change in title, Mr. Jacobs requested copies of:
1. The record from each department, college or higher University of Kentucky administrative officer that recommended for or against, or discussed or justified, the Board action identified above. Please also include all notification(s) to Charles Wethington of such Board action.
2. Each judgment written by each faculty member of the academic unit in which the above tenure was centered, concerning the above change in tenure status and change in title of academic rank. If such records do not exist, then please provide all other existing documentation that shows those faculty who were consulted on the matter.
3. The academic Notice of Appointment form signed by Charles Wethington that shows his status as being associate professor with tenure. What I am specifically seeking here is the Notice of Appointment form that was typically signed at that time by faculty on the occasion of changes in name of their academic rank, or on the occasion of change in their tenure status.
In response to each of these requests, official records custodian George J. DeBin advised Mr. Jacobs:
The Office of the President, Human Resources Employee Records, the College of Education, the Office of Special Assistant to the President for Academic Affairs and the University Archives report that they have no records which are responsive to your request. If such records exist, they would be in files of the Community College System. Under House Bill I, the Higher Education Improvement Act of 1997, the University of Kentucky Official Records Custodian is no longer the custodian of the records of the Community College System.
Mr. DeBin suggested that Mr. Jacobs direct his requests to Sandra Gubser, records custodian for the Kentucky Community and Technical College System.
Shortly thereafter, Mr. Jacobs submitted a second request to the University. On this occasion, he requested copies of:
1. Any notice of terminal appointment or terminal reappointment issued to Charles Wethington from 1965 through 1971, both inclusive.
2. The "white sheet" and copies of the "green sheets," as identified on the attached exhibit [i.e., a copy of a portion of the exhibit to the April 27, 1996 letter from John W. Oswald to Faculty of the University with reference: A Report on Policies and Procedures for Appointment, Promotions, Tenure and Merit], for Charles Wethington from 1965 through 1971, both inclusive.
On the same day, Mr. Jacobs submitted a written request to Sandra Gubser for the records identified in his June 8 and June 22 requests to the University.
Mr. DeBin responded to Mr. Jacobs's June 22 request as follows:
Please be advised that we again checked with the President's Office, the University's Archives, the Lexington Campus Chancellor's Office, Dean's Office, College of Education, Dr. Juanita Fleming, the Senate Council Office and Human Resources--Employee Records to ascertain if such records were at any of those locations. Each office contacted advised that they had no such records. President Wethington stated he never received such a notice.
He again suggested that Mr. Jacobs contact Ms. Gubser at KCTCS for records relating to the Community College System in which Dr. Wethington was employed at the time of the title change.
On behalf of KCTCS, Ms. Gubser responded to Mr. Jacobs's request as follows:
KCTCS has performed a thorough search for the records you requested in your letter received June 24, 1999. Ms. Gray searched the files kept by the Chancellor of the Community College Branch, and Dr. Michael Kerwin did a thorough search of the archived files. No records responsive to your request exist in KCTCS Community College files. . . .
On this basis, Ms. Gubser denied Mr. Jacobs's request. 2 This appeal followed.
In his letter of appeal, Mr. Jacobs argues that the University's records custodian:
violated [his] timely access by failing to furnish either (a) supporting documents of President Wethington's promotion and tenure transaction that are presumed to exist by duly established University procedures, or (b) a written KRS 61.880(1) statement adequately attesting to their nonexistence by way of evidence that the locations searched were reasonably based on the agency's actual system for "maintenance, care and keeping" of such records.
Relying on "the President's procedural flowchart, the President's/Executive VP's policy statements, and Board Governing regulations published and in effect at that time for routing of documentation of promotion/ tenure proposals from . . . the community colleges," he identified various "presumed to exist" documents relating to the promotion/ tenure transaction, asserting that "official university policy" at that time required that the documentation "be maintained in the Office of the Executive Vice President " (emphasis added), and not in the offices identified in Mr. DeBin's responses.
It is Mr. Jacobs's position that the University has committed a two-fold violation of the Open Records Act. The first violation consists of the University's failure to make "the requisite affirmative statement that the records are not in the University's possession or to make the requisite affirmative explanation, if such is the case, that the reason the department, college, committee-level and VP-level transactional documents do not exist is because the transactions occurred orally at these organizational levels without being reduced to writing, or because the transactions never occurred at all." With this allegation we agree, noting however that the University subsequently rectified this omission by offering a reasonable explanation for the nonexistence of these records, and its corresponding inability to locate them, in it November 16, 1999, letter to this office, a copy of which was sent to Mr. Jacobs.
The second alleged violation consists of the University's failure to conduct a search of the records of the office of the 1971 Executive Vice President, which Mr. Jacobs characterizes as the "official maintenance location for the required-to-exist documentation, " and to provide him with "the KRS 61.880(1) explanation that the nonproductive search of the required-to-exist records was reasonably based on the University's written records maintenance system." With this allegation we do not agree, the University having established that the records were not "required to exist," and that even if they had existed, a search of the records of the office of the executive vice president would not have been warranted inasmuch as that office was abolished several months before Dr. Wethington's title change, and the records could not have been reposited in a nonexistent office.
In a supplemental response directed to this office, Mr. DeBin explained:
Mr. Jacobs's appeal alleges that the University violated the Open Records Act by failing, in his judgment, to search adequately for background records relating to the November 15, 1971 appointment of now-President Charles T. Wethington as an associate professor with tenure. Specifically, Mr. Jacobs states that I failed to cause a search of the archived records of the office of the Executive Vice President, which Mr. Jacobs states was, at the time, the office charged with keeping such records.
Mr. Jacobs's factual assertions relating to the necessity to search the records of the office of the Executive Vice President in the context of his request are erroneous. Mr. Jacobs failed to point out that the office of the Executive Vice President was eliminated effective July 1, 1970, almost 18 months before the Board's personnel action relating to Dr. Wethington took place. As admitted by Mr. Jacobs on page 10 of his appeal, the locations which were in fact searched by my office were reasonable. I believe my search complied with the requirements of the Open Records law to conduct a search reasonably calculated to produce the records requested. Attachment 1 documents the abolition of the office of the Executive Vice President.
Mr. Jacobs also complains that I failed to offer an explanation for the nonexistence of the requested records, relying on numerous unpublished opinions from your office. There are two things wrong with Mr. Jacobs's complaint.
He bases this allegation on an erroneous assumption that the documentation he requested (which would have existed in the case of a usual faculty personnel action) was in fact required for this one-time change of community college titles in 1971. The documentation provided to Mr. Jacobs shows clearly the nature of the Board's action, namely that the changes in titles was necessary to comply with the September 21, 1971 action of the Board approving title changes (see Mr. Jacobs's Exhibit 2). Contrary to Mr. Jacobs's assertion, there was nothing in the University's rules that required any documentation for this special type of Board action. See KRS 164.220 and 164.225, which give to the Board exclusive jurisdiction over the control of appointments.
He reaffirmed the University's denial of Mr. Jacobs's requests on the basis of the nonexistence of records documenting the 1971 title change.
In subsequent correspondence, Mr. Jacobs asserted that the University's original response to his request, and its supplemental response to his open records appeal, were nonresponsive insofar as they "offer no accounting for those missing records for events occurring prior to the 1970 abolition of the office of Executive Vice President. " He identified several records which he "presumes to exist" that would be responsive to his requests, including appointment and reappointment forms, and notice of terminal reappointment. The University responded that his appeal "focused exclusively on Dr. Wethington's promotion and tenure in 1971." Given this obvious impasse, we believe that the most judicious resolution lies in remanding the issue of the existence and production thereof, or the nonexistence and explanation therefore, of these documents to the University for a written response within three business days. If Mr. Jacobs is dissatisfied with this response, he may raise this issue in a separate open records appeal.
It is the opinion of this office that the University of Kentucky has adequately documented its efforts to locate the records relating to Dr. Wethington's 1971 title change, and that the search methods used were those which could reasonably be expected to produce the requested records. Further, we find that the University provided a reasonable, albeit delinquent, explanation for its nonproductive search and the nonexistence of the records based on the fact that the documentation he requested was not required for the one-time change of community college titles, including Dr. Wethington's, in 1971. On the subject of adequate documentation of an agency's search, this office has observed:
The Attorney General has long recognized that a public agency cannot afford a requester access to records which do not exist or have been destroyed. See, e.g., OAG 83-11; OAG 87-54; OAG 88-5; 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 or have been destroyed. OAG 86-35. As we observed in OAG 86-35, at page 5, "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." However, since July 15, 1994, when the amendments to the Open Records Act took effect, we have applied a higher standard of review relative to denials based on the nonexistence, or here the destruction, of the requested records. In order to satisfy its statutory burden of proof, a public agency must, at a minimum, document what efforts were made to locate the missing records.
94-ORD-141, p. 5. In the appeal before us, the University documented the efforts that were made to locate the records identified in Mr. Jacobs's requests in its original and supplemental responses. To this extent, it discharged its duty and satisfied the higher standard of review which we have applied since the enactment of the 1994 amendments to the Act.
Moreover, we believe that the search methods employed by the University were those which could reasonably be expected to produce the records requested. 95-ORD-96. This is the standard by which the Attorney General measures the adequacy of an agency's search for public records. As we will more fully discuss below, the University did not conduct a search of the records of the office of the executive vice president because that office ceased to exist in 1970, several months before Dr. Wethington's title change. The University could not be expected to" embark on an unproductive fishing expedition when the likelihood of finding records that [fell] within the outermost limits of the zone of relevancy [was] slight." 95-ORD-96, p. 7 citing In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D.N.Y. 1983). Since nothing appears "to raise the issue of good faith," we "need not go further to test the expertise of the agency, or to question its veracity. . . ." Id. , citing
Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977). Simply stated, the record is devoid of evidence suggesting a purposeful attempt on the part of the University to evade its duty to conduct an adequate search for the records, or to produce any records located.
Ultimately, of course, that search was unproductive, and the University affirmatively so stated by advising Mr. Jacobs that "no records which [were] responsive to [his] request" could be located in the offices searched. Although it failed to do so in its original response, the University subsequently advised Mr. Jacobs that there was, in fact, "nothing in the University's rules that required any documentation for this special type of Board action." (Emphasis in original.) These were not, then, records "apparently required by law," and therefore should not be presumed to have existed. The University provided a reasonable explanation for the nonexistence of records documenting Dr. Wethington's 1971 title change. See 97-ORD-185 (concluding that agency provided a reasonable explanation to requester for the nonexistence of records relating to employment which she requested based on her employment status, and the dates of her employment). This explanation, which appeared in the University's supplemental response to Mr. Jacobs's appeal, should have appeared in its original response. We urge the University to bear this observation in mind in responding to future open records requests involving unproductive searches of offices which could reasonably be expected to house the records requested.
Turning to the issue of the University of Kentucky's purported failure to "adequately attest[] to [the record's] nonexistence by way of evidence that the locations searched were reasonably based on the agency's actual system for 'maintenance, care and keeping' of such records," we find no error in the University's actions. As noted above, the University explained that no documentation was required for this unprecedented and singular Board action, and that even if such documentation had existed, it would not have been housed in the office of the executive vice president, that office having ceased to exist prior to the action being taken.
Although it seems somewhat incongruous to search for records which are not required to exist, we believe that the University's futile efforts were attributable to the age of the records (nearly thirty years old), and its unfamiliarity with a process that apparently occurred only once in its history. Having exhausted all search methods which could reasonable be expected to produce the records requested, the University ascertained that, in fact, this was not "a usual Faculty personnel action," requiring the creation of specific documentation, but a one time title change necessitated by a September 21, 1971, Board action approving said changes. And, had such documentation existed, the University would not have been obliged to conduct a search of the records of an office which did not exist at the time of the action. We therefore find that the University of Kentucky did not violate the Open Records Act by failing to explain that it searched, to no end, the records of that office based on its written records maintenance system. No such records were generated, no such office remained in existence, and no such records maintenance system applied. In the absence of evidence to the contrary, this office has no reason to doubt the University's assertion that no responsive records exist. "In the final analysis, we assume a modicum of good faith from both parties to an open records appeal. . . ." 96-ORD-223, p. 3.
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.
The University of Kentucky is directed to respond to Mr. Jacobs's request for appointment and reappointment forms, and notice of terminal reappointment which Dr. Wethington received prior to the 1970 abolition of the office of executive vice president in writing and within three business days of receipt of this decision. Mr. Jacobs may challenge this response, if warranted, in a separate appeal.
Footnotes
Footnotes
1 Received on June 11 and June 24, respectively.
2 Mr. Jacobs does not challenge the actions of Ms. Gubser or KCTCS.