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 Hazard Independent Schools violated the Open Records Act in the disposition of Linda L. Napier's October 25, 2004, request for copies of notes allegedly generated by Assistant Superintendent Don Pratt in the course of an October 8, 2004, meeting at which Ms. Napier, Assistant Superintendent Pratt, Walkertown Elementary School Principal Sondra Combs, and Superintendent James L. Francis were present, and of which Ms. Napier was the subject. For the reasons that follow, we find that the school system violated KRS 61.880(1) in failing to respond to Ms. Napier's request. Further, we find that the school system's denial of Ms. Napier's request on the basis of the nonexistence of the records she requested was proper only if it conducted an adequate search for those records, and that the legal arguments it advanced in support of its general denial of access to personal notes is, on these particular facts, flawed.
Having received no response to her open records request, which was sent by certified mail and delivered on October 27, 2004, 1 Ms. Napier initiated this appeal on November 12, 2004. By letter dated November 22, Superintendent James L. Francis responded on behalf of the school system. He observed:
Ms. Napier is a Board of Education employee. She as well as all employees has been advised of Board Policies and where those policies are available. Ms. Napier failed to comply with Board Policy 01.6 AP.2 (Request to Examine and/or Copy District Records).
Turning to the substantive issues on appeal, Superintendent Francis advised:
[M]y office has notified Mrs. Napier that I did not take any notes but I did have a very vivid memory of what was said and what was requested. I am enclosing a copy of the letter sent to Ms. Napier via "Certified Mail. " To my knowledge no one including Ms. Napier took "Official Notes" nor was requested to take "Official Notes" for the meeting of October 8, 2004. Ms. Napier makes the false allegation that Mr. Don Pratt acted as "recording secretary. " Mr. Pratt attended this meeting due to the fact the issue was a personnel matter, he is Director of Personnel for Hazard Independent Schools and did not act as "recording secretary. "
It is my view that anyone, including Ms. Napier, who may have personal notes, would fall under the "records exempted from public access." Specifically items 1 and 5, "records of a personal nature where public disclosure is an invasion of personal privacy" as well as "Preliminary drafts and recommendations."
In closing, Superintendent Francis reiterated that he has no notes "nor are there any notes from this meeting contained in Ms. Napier's personnel file. " If, but only if, an adequate search was conducted for records responsive to Ms. Napier's request, including a search of Assistant Superintendent Pratt's records/files relating to this matter, we find that the Hazard Independent Schools cannot be said to have violated the Act in denying Ms. Napier's request for notes taken in the course of the October 8 meeting inasmuch as it cannot produce records which do not exist. However, we do not agree that such notes, if they exist, qualify for exclusion from inspection by Ms. Napier in light of KRS 61.878(3).
It is well established that a public agency cannot afford a requester 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; 97-ORD-103. Moreover, it is not within our statutory charter to investigate in order to locate documents which the requesting party maintains exist, but which the agency states do not exist, or to otherwise resolve a dispute arising from such irreconcilable differences. However, 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 requirement 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]." 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, document what efforts were made to locate the requested records, or offer some explanation for the nonexistence of the records. See, for example, 01-ORD-246 (Education Professional Standards Board conducted adequate search for records relating to former employee when search inquiry was directed to former employee's supervisor and "those individuals in [her] 'chain of command' who could reasonably be expected to produce responsive records"); 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) ; compare 02-ORD-120 (record on appeal did not support school system's assertion that it conducted adequate search for public records where responsive records were located only after open records appeal was filed).
The standard for determining the adequacy of a public agency's search for public records was first articulated in 95-ORD-96. At page seven of that decision, the Attorney General observed:
[T]he 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 Agent 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, supra 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 [sh]ould 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. The Hazard Independent Schools directed its search to the first and most obvious place where records relating to the October 8 meeting, of which Ms. Napier was the subject, were likely to be located, namely her personnel file. It is unclear whether the school system extended its search for responsive records to Assistant Superintendent Pratt's records and/or files in this matter. Because Ms. Napier alleges that Assistant Superintendent Pratt took notes at the meeting, we believe the school system's search for responsive records should have extended to his records/files, regardless of whether he was acting as "recording secretary, " Director of Personnel, or on his own volition. Only if the school system's search extended to records on this subject maintained by Assistant Superintendent Pratt, but yielded no results, can it be said that the school system conducted an adequate search and discharged its duties under the Open Records Act by notifying Ms. Napier that no responsive records exist.
If the Hazard Independent Schools did not direct its search for notes taken at the October 8 meeting to Assistant Superintendent Pratt's records and/or files in this matter, and such notes exist within those records/files, they are entirely accessible to Ms. Napier pursuant to KRS 61.878(3). That statute provides:
No exemption in this section [KRS 61.878 relating to public records exempted from inspection] shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
This statute has been referred to as the "exception to the exceptions" to the Act, and provides public employees with the right to inspect records relating to them. 93-ORD-19. It formerly referenced only "state employee[s]," and had been interpreted by this office as being applicable to state personnel governed by Chapter 18A of the Kentucky Revised Statutes only. See, for example, OAG 87-50; OAG 90-83; OAG 91-128; OAG 91-133. It now extends, by its express terms, to all "public agency employee[s], including university employees, . . . applicant[s] for employment, or . . . eligible [s] on a register. " When applicable, KRS 61.878(3) overrides all of the exemptions to public inspection set forth in KRS 61.878(1) with the exceptions of KRS 61.878(1)(k), pertaining to records or information the disclosure of which is prohibited by federal law or regulation, and KRS 61.878(1)(l), pertaining to records or information the disclosure of which is prohibited, restricted, or otherwise made confidential by enactment of the General Assembly. In addition, public agency employees do not have right to inspect examinations or documents relating to ongoing criminal or administrative investigations by an agency. 95-ORD-97; 96-ORD-27. Although personal notes taken at a meeting might qualify for exclusion from inspection by the public generally, pursuant to KRS 61.878(1)(i) and possibly (a), such notes do not qualify for exclusion from inspection by the individual public employee, i.e., Ms. Napier, who is the subject of those notes. Because they relate to Ms. Napier, and the record on appeal is devoid of evidence that she is the subject of an ongoing criminal or administrative investigation by the Hazard Independent Schools, the notes must be released to her if they exist in Assistant Superintendent Pratt's files or elsewhere within the school system. Consistent with the principles set forth above, the school system must extend its search beyond Ms. Napier's personnel file, if it has not done so already, and produce for her inspection any responsive records that search yields regardless of their "preliminary" or "private" character. If the additional search yields no results, the school system must so advise her.
With reference to the procedural violation noted above, KRS 61.872(2) provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
In construing this provision, the Attorney General has recognized:
The public agency may require, if it desires to do so, that a request or application be in writing. If a written request or application is required, the statute is satisfied if the written application whether or not submitted on the public agency's form contains the following:
1. Applicant's signature.
2. Applicant's name printed legibly.
3. Description of records to be inspected.
94-ORD-101, p. 2. This position echoed an early open records opinion in which the Attorney General stated that "[p]ublic agencies may put into their regulations the requirement for written application but we believe it is contrary to the letter and spirit of the open records law for an agency to make it more difficult to inspect a public record than it was before the open records law was enacted." OAG 76-588, p. 2; see also 95-ORD-60 and 95-ORD-33. Inasmuch as the requester's purpose in seeking access to public records is irrelevant, and KRS 61.872(2) narrowly restricts what information a public agency may require from the requester, this office has consistently disapproved the required use of preprinted forms requesting additional information.
Moreover, at page 3 of 94-ORD-101, the Attorney General observed:
While the public agency may require a written application, as opposed to an oral request, there is nothing in the statute which authorizes a public agency to reject a request simply because the requestor did not use the specific form devised by the public agency. A particular form may be desired or suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records.
Continuing, this office noted that the agency "violated the Open Records law when it ignored the application or request to inspect public records because it was not submitted on a particular form devised by the public agency, " and that the agency "was under a legal obligation to respond to the request within the statutorily mandated time frame . . . ." Id. at 3, 4.
Based on the cited authorities, we find that the Hazard Independent Schools violated KRS 61.880(1) in failing to respond to Ms. Napier's request because she did not comply with a Board of Education policy requiring the submission of an open records request on a preprinted form developed by the Board. Her October 25 request conformed, in all particulars, with the requirements found at KRS 61.872(2). It was therefore incumbent on the Hazard Independent Schools to respond in writing, and within three business days, to that request, and its failure to do so constituted a violation of 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 proceeding.
Linda L. NapierP. O. Box 495Pineville, KY 40977
James Francis, SuperintendentHazard Independent Schools System325 Broadway StreetHazard, KY 41701
William Engle IIIEngle & Lewis, LLPSuite One, 470 Main StreetP.O. Drawer 1179Hazard, KY 41702
Footnotes
Footnotes
1 Ms. Napier provided this office with a copy of the postal return receipt bearing the signature of Regina Cornett.