Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Natural Resources and Environmental Protection Cabinet's Department for Surface Mining Reclamation and Enforcement and Division of Water violated the Open Records Act in denying the Appalachian Citizens Law Center's November 14, 2003 request for "Discharge Monitoring Reports for Sidney Coals' [sic] KPDES Permit No. KY00025950 (DSMRE Permit No. 898-5168) . . . for September 1998 and all subsequent DMR's up to the most recent DMR that DSMRE has received." 1 For the reasons that follow, we find that the Department did not violate the Act in denying the request, insofar as it cannot make available for inspection records which no longer exist, but that the failure to maintain Discharge Monitoring Reports for a period of ten years within the Cabinet's Division of Water raises records management and retention issues which are appropriate subjects for review by the Department for Libraries and Archives under Chapter 171 of the Kentucky Revised Statutes. We have therefore referred this matter to the Department for additional inquiry as that agency deems warranted.
In a response dated November 20, 2003, Dr. Keith B. Smith, Acting Director of the Division of Field Services, advised the Center as follows:
Departmental records maintained in the Frankfort Office were reviewed. During 1998 and 1999, the Department for Surface Mining Reclamation and Enforcement (DSMRE) forwarded all DMRs to the Division of Water. Unfortunately, these records are unavailable because DSMRE did not retain copies of these documents and the Division of Water did not retain the original documents.
Mr. Smith further advised that copies of DMRs from 2000 through the present could be obtained from the Pikeville Regional Office of the Department for Surface Mining.
Dissatisfied with the Department for Surface Mining's response, the Center initiated an open records appeal, through Staff Attorney Amanda Moore, on December 4, 2003, arguing that "the Division of Water's (DOW) DSMRE disposal of the requested documents violates the purpose of the Open Records Act and other regulatory statutes that depend on citizen access to information for effective operation." Continuing, she observed:
The Open Records Act does not specify how long an agency must retain public records. However, the very fact of an Open Records Act requires agencies to diligently maintain their records. If agencies are allowed to destroy records because they are burdensome or embarrassing for the agency, then the Open Records Act has no meaning.
The Center realizes that it cannot inspect public records that no longer exist. Therefore, the Center requests that the Attorney General declare the DSMRE's and DOW's disposals to be in violation of the Open Records Act.
In closing, Ms. Moore asserted that the Department for Surface Mining Reclamation and Enforcement and the Division of Water "should keep all records in storage instead of disposing of them."
In supplemental correspondence directed to this office following commencement of the Center's appeal, Mr. Smith elaborated on the Department's position. He explained:
The Department for Surface Mining Reclamation and Enforcement did not discard the Discharge Monitoring Reports (DMRs) submitted by Sidney Coal Company, Inc., permit number 898-5168, during 1998 and 1999. These documents were forwarded to the Division of Water as was mutually agreed upon by both agencies.
If the Discharge Monitoring Reports (DMRs) for 1998 and 1999 had been available, the Department for Surface Mining Reclamation and Enforcement would have readily provided the records to the Appalachian Citizens Law Center, Inc.
He reiterated that "[a]ccess to all other records as requested by Ms. Moore was provided."
The records at issue in this appeal consist of Discharge Monitoring Reports submitted by Sidney Coal Company, Inc., during 1998 and 1999. Both parties to this appeal acknowledge that these records no longer exist. Further, both parties to the appeal acknowledge that the Department cannot afford the Center access to nonexistent records. This proposition finds ample support in prior decisions of this office. See, e.g., OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-112; 94-ORD-65; 99-ORD-59. Accordingly, we cannot declare the failure to produce nonexistent records a violation of the Open Records Act.
Nevertheless, the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, relating to the management of public records. KRS 61.8715 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 11.501 to 11.517, 45.253, 171.420, 186A.040, 186A.285, and 194B.102, dealing with the coordination of strategic planning for computerized information systems]." The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id.
Pursuant to KRS 171.420, the Archives and Records Commission is authorized to "review and approve schedules for retention and destruction of records submitted by state and local agencies. " Additionally, the Commission is charged with the duty to "establish standards for the selective retention of records of continuing value," and the Department for Libraries and Archives with the duty to "assist state and local agencies in applying such standards to records in their custody." KRS 171.530. The Commission has discharged its authority by approving a records retention schedule for the Natural Resources and Environmental Protection Cabinet, including the Department for Surface Mining Reclamation and Enforcement and the Division of Water. At Series 04506, that schedule requires the Cabinet to "retain at agency," for a period of ten years, Discharge Monitoring Reports - Quality Assurance Files. The schedule reflects that the change date for this records series was March 9, 1995, several years in advance of the destruction of the records identified in the Center's request. These facts are indicative of records mismanagement and improper records destruction. For this reason, we are obliged to refer this matter to the Department for Libraries and Archives for additional inquiry as that agency deems appropriate.
Ultimately, we cannot afford the Center the relief it seeks. We are not empowered to declare the Department's failure to produce nonexistent records a violation of the Open Records Act, or to otherwise compel the Department to "keep all records in storage instead of disposing of them." The latter prerogative resides in the Archives and Records Commission and we respectfully defer to the Commission on this question. Nor can we engage in independent fact finding relative to the improper destruction of records that might have proved "embarrassing to the Department." Unsubstantiated allegations of such improprieties simply cannot be adjudicated in an open records appeal.
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.
Amanda MooreAppalachian Citizens Law Center, Inc.207 W. Court St., Suite 202Prestonsburg, KY 41653-7725
Keith B. Smith, Acting DirectorDivision of Field ServicesDepartment for Surface Mining Reclamation & Enforcement# 2 Hudson HollowFrankfort, KY 40601
Richard Belding, DirectorPublic Records DivisionDepartment for Libraries and Archives300 Coffee Tree RoadP.O. Box 537Frankfort, KY 40601
Footnotes
Footnotes
1 By this, we assume Mr. Smith means that copies of all remaining requested records were mailed to the Center and Ms. Moore. In his original response, Mr. Smith merely advised that the records could be obtained by contacting the Pikeville Regional Office. To the extent that Ms. Moore works and most likely resides outside of the county where the records are maintained, precisely described the records which she wished to access by receipt of copies, and no evidence was adduced that the records are not readily available within the agency, we believe that the Department was obligated to mail her copies, pursuant to KRS 61.872(3)(b), upon receipt of reasonable copying charges.
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