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 Lone Jack Elementary School violated the Open Records Act in its disposition of Lynn Partin's July 16, 2000, request for copies of the school site based decision making council's minutes for June, July, August, and September of 1996. Ms. Partin's request went unanswered, prompting her to initiate this appeal.
In a letter dated September 7, 2000, Robert B. Bowling, an attorney representing the Bell County School System, within which Lone Jack Elementary School is located, advised this office that "the Principal at Lone Jack failed to respond to Ms. Partin because there are no SBDM council minutes. " Relying on OAG 89-7, OAG 87-54, and KRS 61.872(3), Mr. Bowling asserted that the "public agency properly responds that it does not have the records (minutes of the Lone Jack SBDM) requested by Ms. Lynn Partin." He attached copies of responses prepared by Superintendent Yvonne Gilliam and Principal Bill Gibson.
In her response, Superintendent Gilliam acknowledged that Mr. Gibson erred in failing to respond to Ms. Partin's request by informing her that "Lone Jack Elementary did not opt to enter the Site-Based Decision Making Management until December 1999," and therefore responsive records do not exist. Continuing, Superintendent Gilliam explained:
Mr. Gibson told me that Ms. Partin had requested SBDM minutes for a period two years prior to the formation of a SBDM Council. The fact that no council existed during the period requested does not excuse Mr. Gibson from failing to so inform Ms. Partin. I apologize for Mr. Gibson's negligence in this matter. However, please understand that I required all principals to participate in extensive professional development for one week in Texas and one week locally prior to the opening of our schools for the 2000-2001 school year, August 7, 2000. This placed enormous pressure on our administrators to address all the immediate issues of beginning a new school year. Sometimes when you are in the field you have to prioritize your time and efforts.
In closing, Superintendent Gilliam suggested that Ms. Partin contact Lone Jack Elementary School's former principal, Eddie Bingham, for information relating to the school "during 1997." Mr. Gibson echoes these statements in the response he directed to this office, confirming that "because Lone Jack did not have a SBDM Council in 1997 nor was [he] principal of the school, [he] did not respond to the letter." He stated that he did not intend "to withhold information . . . [but] did not have the information to share."
We will not belabor the issue of Lone Jack Elementary School's failure to comply with the procedural requirements of the Open Records Act codified at KRS 61.880(1). Mr. Gibson has acknowledged his error in neglecting to respond, and, we assume, his corollary duty to promptly respond in writing to all future open records requests. We urge him to review KRS 61.880(1), as well as the Open Records Act in its entirety, to insure that Lone Jack Elementary is in full compliance with all of the requirements of the Act, including the requirement of a timely agency response.
Turning to the substantive issue in this appeal, we find no error in Mr. Gibson's denial of Ms. Partin's request based on the nonexistence of the records identified in that request. This office has long recognized that a public agency cannot furnish access to records which do not exist. 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 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 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). Superintendent Gilliam and Mr. Gibson explain that Lone Jack Elementary School cannot honor Ms. Partin's request because the school "did not opt to enter the Site-Based Decision Making Management until December, 1999." Because no council existed, no records were maintained. The question presented is therefore factual, and not legal, in nature. To the extent that no responsive records exist, Lone Jack Elementary School's response was, although untimely, otherwise consistent with the requirements of the Open Records Act insofar as the agency cannot make available records that 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 proceedings.