Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye Bensenhaver, Assistant Attorney General
Open Records Decision
The questions presented in this appeal relate to an ongoing records access dispute involving Donald L. Miller, II, and the Jefferson County Public Schools. In 00-ORD-119, this office resolved the issue of access to records documenting JCPS's compliance with traditional school enrollment policies and residency requirements in favor of Mr. Miller. That decision, which dealt exclusively with the propriety of JCPS's denial of his request, was not appealed. It therefore has the force and effect of law. KRS 61.880(5)(b). In the course of conducting an on-site inspection of the records that were the subject of 00-ORD-119, Mr. Miller identified additional problems arising under the Open Records Act that can, in general, be characterized as records management and records search issues. As in 00-ORD-119, we find that these issues must be resolved in Mr. Miller's favor. In addition, after inspecting the available records, Mr. Miller was prompted to request other records to which he was partially denied access. An analysis of the propriety of JCPS's disposition of these requests follows.
However, contrary to his apparent belief, Mr. Miller's complaints concerning the alleged alteration of public records cannot be adjudicated in an open records appeal, or an investigation into these allegations conducted by this office. Evidence of such misconduct, if it exists, must be presented to the local prosecutorial authorities, as must evidence, if it exists, of willful concealment or destruction of records with an intent to violate the Open Records Act. Moreover, Mr. Miller's complaints concerning JCPS's alleged noncompliance with traditional school enrollment policies are not an appropriate subject for dispute resolution under KRS 61.880(2)(a). Our review is confined to the narrow issues arising under the Open Records Act, and it is to these issues that we now turn.
Following publication of 00-ORD-119, Mr. Miller conducted an on-site inspection of the acceptance forms that were, in part, the subject of his earlier appeal. The inspection took place on July 14, 2000. To summarize the events of that day, Mr. Miller was permitted to inspect a record that he was initially advised did not exist or had been destroyed. This confusion arose from JCPS's apparent failure to transmit Mr. Miller's request to Angela French-Coles, principal of Audubon Traditional School, in whose sole custody and control the record resided. Mr. Miller objected that he had previously been advised that it is the principal who is responsible for generating the record, and it seemed only reasonable that JCPS would inquire of her whether a responsive record exists. It was his position that JCPS did "not exercise any diligence, much less reasonable diligence in searching for properly requested documents as required by law." Its eleventh hour discovery of the record did not satisfy its obligation to adequately manage and maintain that record, or to conduct a search for the record using the method which could reasonably be expected to produce it.
In 95-ORD-96, a copy of which is attached hereto and incorporated by reference, this office examined the scope of a public agency's duties in managing its records, and conducting a search for a missing record. There, the requester asked to inspect a record in a named individual's files relating to a specific event which the requester described in detail. After reviewing the files, the public agency denied the request explaining that no responsive record could be located. We declined the requester's invitation to declare the agency's failure to produce the record a violation of the Open Records Act for reasons not here relevant. Nevertheless, at page 3 through 6, we analyzed the obligations imposed on public agencies by operation of KRS 61.8715, the statute that recognizes an essential relationship between the intent of the Open Records Act and the intent of the laws pertaining to records management (KRS 171.410 to 171.740), and declares that "to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes." KRS 61.8715. The Attorney General thus observed:
If a public agency fails to discharge its statutorily mandated duty to establish effective controls over the creation, maintenance, and use of records, and to make known to all of its officials and employees that no records are to be destroyed except in accordance with the law, the agency subverts the intent of the Open Records Act by frustrating full access to public records.
95-ORD-96, p. 4, citing 94-ORD-121.
On the issue of the unexplained destruction or loss of a public record, this office further 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. . . . However, since July 15, 1994, when [KRS 61.8715] took effect, we have applied a higher standard of review relative to denials based on the nonexistence, or . . . 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. . . . The loss or destruction of a public record creates a presumption of records mismanagement, but this presumption is rebuttable. . . .
95-ORD-96, p. 5. In 95-ORD-96, the public agency's failure to provide any explanation for the loss of the requested record led us to conclude that it had not adequately managed its records.
In the appeal before us, the record to which Mr. Miller was initially denied access on the basis of its destruction or loss was belatedly located and produced for his inspection. Nevertheless, no explanation was offered for JCPS's inability to access and retrieve the record, suggesting a failure to establish effective controls over the creation, maintenance and use of its public records thereby frustrating full public access. We urge JCPS to review the cited provision, along with the open records decision interpreting it, in the interest of promoting effective records management policies.
Regardless of whether JCPS overcame the presumption of records mismanagement, its disposition of Mr. Miller's request raises a second, and equally important, question: Whether JCPS conducted an adequate search for a responsive record. In 95-ORD-96, this office established a standard by which to measure the adequacy of an agency's search for public records. At page 7, we stated.
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 Agency 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 , 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 (emphasis added).
We concur with Mr. Miller in his view that the search methods used by JCPS were not, initially at least, those which could be expected to produce the record "indicating on what date acceptance forms were returned." The responsibility for contacting parents to confirm their acceptance of Audubon Traditional Schools' invitation to enroll their children in its kindergarten program apparently rested with Principal French-Coles. It was therefore to Principal French-Coles that JCPS should have directed its inquiries concerning the existence of a responsive record. Had Mr. Miller not diligently pursued the matter, the record might never have been located. We do not mean to suggest that this was the only place to which JCPS should have looked in conducting its search, but it was clearly the first and most obvious place. Although the responsive record was belatedly located, we believe that the evidence supports Mr. Miller's allegation that JCPS failed to conduct an adequate search for the record identified in his request, and deemed nonexempt at page 10 of 00-ORD-119.
Evidence of alteration of documents or willful concealment of public records, if it exists, cannot appropriately be reviewed by this office in the context of an open records appeal. Our analysis of the opinion that Mr. Miller cites in support of his position that the Attorney General is authorized to conduct an investigation into the alteration, destruction, or concealment of public records yields a different conclusion. In OAG 86-35, upon which he relies, we recognized:
There is no provision in the Open Records Act giving this office general investigatory powers. We are neither required nor authorized to conduct investigations of public agencies to attempt to locate documents which the requesting party maintains exist but which the public agency states do not exist.
OAG 86-35, p. 4. This statement is consonant with the position we took in 98-ORD-23 in which we declared:
Our role in adjudicating the open records dispute between the parties is a limited one. Pursuant to KRS 61.880(2)(g), the Attorney General is charged with the duty to review [the] request and the [agency's] response, and issue a written decision stating whether the [agency] violated the provisions of KRS 61.870 to 61.884.
98-ORD-23, p. 2. Although as Mr. Miller correctly observes, KRS 61.991(2)(a) establishes penalties for public officials who willfully conceal or destroy public records with the intent to violate the provisions of the Open Records Act, and KRS 519.060 establishes the crime of "tampering with public records, " the Attorney General is not authorized to render a decision on questions arising under these statutes, or to conduct an investigation into allegations of these offenses in an open records appeal.
The only remaining issue before the Attorney General in this open records appeal relates to the propriety of JCPS's partial denial of Mr. Miller's July 13, 2000, request for copies of records identified as:
* the "wait list" for Audubon Traditional School entering kindergarten class;
* all . . . notes, records, and files regarding, concerning, or relating to [his] open records request dated May 2, 2000, and all follow-up work regarding or relating to that request.
In her July 18 response, Pat Todd furnished Mr. Miller with a redacted copy of the wait list, explaining that:
The work phone numbers, home phone numbers, previous locations and birthdates have been redacted from the list pursuant to KRS 61.878(1)(a) because the information is of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. Home and work phone numbers, and previous locations, as pointed out by the Office of the Attorney General, have no bearing in your inquiries regarding enrollment policies and residency requirements. We have also redacted birthdates since such information is of a private nature and is not responsive to your interest in the residency requirement for prospective Audubon Traditional Elementary School.
With reference to his request for records relating to his May open records request, Ms. Todd advised Mr. Miller that any responsive records were exempt from inspection pursuant to KRS 61.878(1)(i) and (j).
Mr. Miller contends that because he was permitted to inspect the wait list without redactions, he is entitled to receive unredacted copies. If, in fact, Mr. Miller was afforded unrestricted access to the wait list for purposes of on-site inspection, JCPS is foreclosed from invoking the privacy exception as a basis for releasing redacted copies of the same records. Thus, in 94-ORD-47 the Attorney General held:
It is abundantly clear from the language of [KRS 61.874(1)] that one having inspected records is entitled to copies of them upon payment of a reasonable fee. . . . The right to copies is thus correlative to the right to inspect those records. Accordingly, a public agency cannot on the one hand release public records for inspection by a requester, and on the other hand deny the requester the right to copy these records. See, e.g., OAG 89-27; OAG 89-43; OAG 89-66. The public records are either available for inspection and copying, or under one or more of the exceptions codified at KRS 61.878(1)(a) through [(1)], they are not.
Based on this decision, we conclude that if Mr. Miller was permitted to inspect the unredacted wait list, JCPS effectively waived its privacy argument as it relates to the information that was masked, and must furnish him with an unredacted copy. Acknowledging that JCPS has neither confirmed nor denied that this is the case, we leave it to the parties to resolve this dispute in a manner consistent with the principles set forth above.
With reference to Mr. Miller's request for "all . . . notes, records, and files regarding, concerning, or relating to [his] open records request dated May 2, 2000, and all follow-up work regarding or relating to that request," we affirm JCPS's denial on the basis of KRS 61.878(1)(i) and (j). Numerous decisions of this office support the view that intraoffice communications are exempt from public inspection where the documents are preliminary (not evidence of final action) and contain the opinions of their authors. In considering the underlying purpose of these exemptions, this office has previously observed:
One of the purposes of KRS 61.878(1)[(i) and (j)] appears to us to be to allow the free flow of discussion among governmental officials which is preliminary to the final decision. Consequently recommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there would be a chilling effect cast upon the ability of government o function as a system. There must be an open atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision.
OAG 88-85, p. 40. This position finds support in
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577-578, in which the Kentucky Supreme Court recognized that:
despite its manifest intention to enact a disclosure statute, the General Assembly determined that certain public records should be excluded from disclosure. Among such records are . . . "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; " and "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated are recommended." KRS 61.878(1)[(i) - (j)]. From these exclusions we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to . . . the need for governmental confidentiality.
See also,
Courier-Journal and Louisville Times Co. v. Jones, Ky. App., 895 S.W.2d 6, 8 (1995) (recognizing that "the concept of governmental confidentiality has not been totally diluted by the Open Records Act" ).
Clearly, notes, records, and files relating to Mr. Miller's open records request might contain opinions and recommendations concerning JCPS's records custodian's ultimate and final decision to disclose or withhold the records requested. Unless incorporated into that final decision, these records retain their preliminary characterization. By the same token, any draft responses to his request that were not issued may properly be withheld. Because we do not know the precise nature of the records withheld, we again leave it to the parties to resolve this dispute in a manner consistent with the principles set forth above.
In sum, we find that the Jefferson County Public Schools did not fully discharge its duty to effectively manage and maintain the public records within its custody and control, thereby frustrating Mr. Miller's access to those records. Nor did JCPS discharge its duty to conduct an adequate search for public records in response to Mr. Miller's open records request out of which this controversy arose. The propriety of its decision to withhold portions of the "wait list," as well as intraagency drafts, notes, and memoranda relating to Mr. Miller's request, cannot be resolved in the context of this appeal, given certain gaps in the factual record, but the principles set forth above should provide guidance to the parties in settling any lingering disputes. Finally, we find that this appeal is not the appropriate forum for reviewing allegations of document alteration, willful concealment and/or destruction of documents, and failure to comply with traditional school enrollment policies, or the appropriate starting point from which to launch an investigation into any of these allegations. Our analysis is restricted to those questions that arise under the Open Records Act.
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 proceedings.