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 Livingston County School System violated the Open Records Act in the disposition of Anita Mosley's August 19, 2002, request for "all correspondence regarding Chemical Environmental Solutions, Inc., or Wayne Mosley that you may have sent or received for the year of 2002." In the absence of evidence to the contrary, we must assume that the school system truthfully notified Ms. Mosley that it maintains no responsive records. This apparently being the case, we affirm the school system's denial of her request on the basis that it cannot produce for inspection records that it does not possess, but find that its response was only minimally adequate.
In correspondence directed to this office following commencement of Ms. Mosley's appeal, Livingston County Board of Education Attorney William F. McGee advised that on August 27, 2002, Superintendent Harry Loy notified Ms. Mosley "that documents requested had neither been received or sent by the Livingston County Schools." Although he did not provide us with a copy of Superintendent Loy's response, 1 Mr. McGee asserted that "the request was responded to properly; however, . . . no documents were available to be copied." The school system failed to document what steps were taken to locate responsive documents, or explain why none exist.
This office has long recognized that a public agency cannot provide access to records that do not exist. See, e.g., OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17; 00-ORD-120. We have also recognized that it is not our duty to investigate in order to locate documents when an agency asserts that they do not exist. 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); 00-ORD-120 (x-rays of inmate's injuries not taken and therefore responsive record did not exist). In the cited decisions, resolution of the appeals turned not on whether the fruits of the agencies' search met the requester's expectation, but whether the agencies made a good faith effort to locate the requested records, and, having failed to do so, offered a reasonable explanation for the records' nonexistence.
In the appeal before us, the Livingston County School System has not described its search methodology or offered any explanation as to why no responsive records exist. If, for example, the school system was never approached by a representative of Chemical Environmental Solutions, Inc. or communicated with that entity, or with the Department of Education about that entity, it is sufficient to so state. The school system has denied the existence of any responsive records, and this is a minimally adequate response. Although nothing in the record "appears to raise the issue of good faith," and we therefore decline "to question the [school system's] veracity," Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977) cited in 95-ORD-96, we urge the Livingston County School System "to provide particular and detailed information in response to a request for documents, "Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). When its denial is premised upon the nonexistence of responsive records, we urge the school system to document what steps were taken to locate those records or briefly explain why the records 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 proceeding.
Anita MosleyChemical Environmental Solutions, Inc.300 Deerfield LaneLexington, KY 40511
Harry T. Loy, SuperintendentLivingston County Board of EducationP.O. Box 219Smithland, KY 42081
William F. McGee, AttorneyLivingston County Board of Education115 East Adair StreetSmithland, KY 42081
Footnotes
Footnotes
1 To avoid disputes relative to the content of its open records responses, we urge the Livingston County School System to permanently maintain copies of these responses just as it would any other official correspondence signifying final agency action.
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