Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the actions of the Cabinet for Health and Family Services relative to the request of Betty Runner for copies of "all of my notes that are written on my payroll records regarding my work related injury-Workers' Compensation Off work from May 17, 2004 through June 28, 2004 and all prior dates off work relating to my work related injury," violated the Kentucky Open Records Act. Because the Cabinet has provided Ms. Runner with copies of any existing records which are potentially responsive to her request, any issues concerning those records are now moot. Having affirmatively indicated to Ms. Runner in writing that records matching the description provided do not exist, the Cabinet has fully complied with the Open Records Act.
On a standard request form directed to Mark D. Honeycutt, General Counsel and Custodian of Records, Personnel Cabinet, on April 14, 2005, Mr. Runner requested copies of her "Payroll Section Records" and the "Notes written on my records." More specifically, Ms. Runner requested copies of "All of my notes that are written on my payroll records regarding my work-related injury-Workers' Compensation Off work from May 17, 2004, through June 28, 2004, and all prior dates off work relating to my work-related injury." In addition, Mr. Runner requested "all notes on my payroll records relating to my monthly salary, demotions, etc." In response, Mr. Honeycutt advised Ms. Runner to check with the payroll officer of her agency as no records were found. On May 5, 2005, Ms. Runner forwarded her request to Jennie Young, "CHFS OHRM/ERB," the person to whom she was advised to direct her request.
In a timely written response, J.P. Hamm, Executive Director, Office of Human Resource Management, notified Ms. Runner that it would take longer than the statutory time period of three days to gather the requested information. Anticipating release of the records on or about May 18, 2005, Mr. Hamm further advised Ms. Runner that the Cabinet would notify her of the cost associated with honoring her request upon completion.
By letter dated June 1, 2005, Ms. Runner initiated this appeal from the Cabinet's failure to provide her with copies of the requested records. Upon her return to work following "outpatient medical surgical treatment that was approved by workers' compensation, " the "payroll section" informed Ms. Runner that someone in the Cabinet "had put notes" on her "computerized payroll records pertaining to the workers' compensation Temporary Total Disability Payments" for the weeks that she missed. Attached to Ms. Runner's letter of appeal are copies of her initial request, the memo to Jennie Young, and the Cabinet's response. By letter of the same date, Mr. Hamm advised Ms. Runner that 142 pages of responsive records were enclosed with his response, including the "documents contained in the workers' compensation file maintained in the Louisville, Kentucky Department for Disability Determinations office" and copies of the documents contained in the workers' compensation file maintained in the Office of Human Resource Management in Frankfort, Kentucky.
Upon receiving notification of Ms. Runner's appeal from this office, John H. Walker, Assistant General Counsel, responded on behalf of the Cabinet. As explained by Mr. Walker:
When the open records request was sent by Mr. Runner to the Office of Human Resource Management (OHRM), personnel in that office studied the request carefully to ascertain just what Ms. Runner wanted and whether any such document existed. A short note to Ms. Runner was sent on May 9, 2005, acknowledging receipt of the request and advising Ms. Runner that information would be provided to her on May 18th. Efforts to ascertain what data available met her need continued. One problem with finding any such payroll documents is that the payroll documents are computerized, and there is no way to make notations on the payroll documents relating to Ms. Runner's workers compensation claim. In an effort to respond, OHRM forwarded to her all records on her workers comp claim from the office of the Department for Disability Determinations, together with all records on her claim maintained by the OHRM in its files. Ms. Runner was also advised that if she were to seek additional documents, she was free to submit a request specifically identifying or describing the documents. []
Ms. Runner has not identified who told her payroll records were annotated. We don't know in what context it was said. Ms. Runner has worked in more than one office of the [CHFS] and of its predecessor agency, the Cabinet for Families and Children. Payroll records would not necessarily follow a worker to another job. What is needed is more specificity.
As if by afterthought, Ms. Runner mentions demotions in her request. If Ms. Runner needs documents relating to any disciplinary action taken against her, she can specifically request it, and if those documents exist and are accessible under the [Open Records Act] , they will be forwarded to her. The [CHFS] does not connect workers compensation claims with disciplinary actions. They are two different administrative animals.
The Cabinet will be more than happy to help Ms. Runner further if she could be a little more specific about what it is exactly that she seeks. The Cabinet has invited her to do so, and will be as responsive as it can be in any future request made by her in regard to this matter. 1
By letter directed to Ms. Runner on June 16, 2005, a copy of which Mr. Walker forwarded to this office, Jay Klein, Division of Employee Management, supplemented the Cabinet's response. In relevant part, Mr. Klein observes:
We have printed [your] computerized payroll records, including: the "pending transactions' reports for May 31, 2004, June 15, and June 30, 2004; "Leave Balance Summary" reports as of June 15 and December 15, 2004; and, your "Employee History File" for 2004. However, please be advised that there are no notes on these records as there is [not a] way to make "notes" on the computerized records short of printing the record and making a handwritten note on the record. We were unable to find any of these records in hard copy with notes written on them. In addition to the records, we have included a sheet that provides an explanation of the transaction codes used on the records.
Finally, you will find enclosed a WCF-1 dated June 8, 2004, on which your medical absence was reported to Workers' Compensation. Whether or not you received benefits for this absence would be a decision made by Workers' Compensation. If you have any questions about your Workers' Compensation benefits, you should contact Mary Hook at (502)564-6847.
Assuming that the Cabinet made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," as appears to be the case, this office concludes that the Cabinet discharged its statutory duty, though that search yielded no results, by notifying Ms. Runner that no responsive records were found, and providing Ms. Runner with copies of any existing records which are potentially responsive. 03-ORD-243; 95-ORD-96.
With respect to disputes of a factual nature between a requester and a public agency, the Attorney General has consistently observed:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [Ms. Runner] asked to inspect, that that copies of some records have been provided. Hopefully, any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-061, p. 2, citing OAG 89-81, p. 3; 04-ORD-036; 03-ORD-204. As in the cited decisions, the limited evidence of record does not permit this office to conclusively resolve the factual issue presented, namely, the discrepancy between the records being sought and those provided, although the record presents no reason to question the veracity of the Cabinet in this regard.
That being said, the record reflects that the Cabinet has provided Ms. Runner with copies of her computerized payroll records for the time period in question, all records related to her Workers' Compensation claim maintained by the DDD and the OHRM, and her "Employee History File" for 2004; any issues relative to those records are therefore moot. 40 KAR 1:030 Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has long held that if access to public records for which inspection or copying is sought is initially denied, but subsequently granted, "the propriety of the initial denial becomes moot. " OAG 91-140. Absent objective evidence to the contrary, this office assumes that you have received copies of those existing records (minus the handwritten notes) which are responsive to your request. Accordingly, any issues relative to those records are now moot, and this office must decline to issue a decision on the merits as to those records.
On appeal, the Cabinet clarifies that a thorough search revealed no hard copies of the requested records containing the notations at issue. As the Attorney General has consistently recognized, a public agency cannot afford a requester access to records that it does not have or to records which do not exist. 04-ORD-036, p. 5, citing 03-ORD-205, p. 3; 02-ORD-118; 99-ORD-98; 98-ORD-200; OAG 91-112; OAG 83-111; OAG 87-54. In other words, the right to inspect attaches only if the requested records "have been prepared, owned, used, in the possession of or retained by a public agency. " 02-ORD-120, p. 2, citing 97-ORD-18; KRS 61.870(2) . However, the Cabinet's inability to produce the requested records due to their apparent nonexistence "is tantamount to a denial," of Ms. Runner's request, so it was incumbent on the Cabinet to notify Ms. Runner that no records fitting the description provided exist "in clear and direct terms." 02-ORD-144, p. 3. While a public agency obviously cannot furnish that which it does not have or which does not exist, "a written response that does not clearly so state is deficient." Id. Accordingly, the Attorney General has held that a public agency's response violates KRS 61.880(1) "if it fails to advise the requesting party whether the requested record exists," 98-ORD-154, p. 2, citing 97-ORD-161, p. 3, with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively so indicating as the Cabinet ultimately did here. 04-ORD-046, p. 4; 03-ORD-205, p. 3, citing 99-ORD-98.
When an agency denies the existence of requested documents, it is not our duty "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2; 04-ORD-059. In short, the limited function of this office in the context of an Open Records appeal is to review the course of action taken by a public agency, not to locate the documents that a party has requested to inspect. 03-ORD-205, p. 3, citing OAG 86-35, p. 5. "We are not empowered to go beyond the written record to determine whether agency employees and officials purposefully attempted to avoid public scrutiny by failing to create a paper trail." 04-ORD-059, p. 4, citing 00-ORD-16, p. 5. Here, Ms. Runner has not demonstrated that the Cabinet is legally obligated to generate and maintain records of the type requested (hard copies of the requested records with handwritten notations) nor has our research revealed any authority to that effect. Absent such authority or reason to question the veracity of the Cabinet, this office must conclude that the Cabinet did not violate the Act in failing to provide Ms. Runner with copies of the records in the condition described.
Consistent with the mandate of KRS 61.8715, 2 there may be occasions when the Attorney General will require a public agency to substantiate its denial of a request by documenting the efforts undertaken to locate the records or explaining why no such records were created. On the facts presented, further inquiry is not warranted. To the contrary, the Cabinet has provided a credible explanation for the lack of "notes" on the computerized records, and advised Ms. Runner to contact Mary Hook at Workers' Compensation with any questions regarding her benefits as required by KRS 61.872(4); 3 nothing more is required.
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.
Footnotes
Footnotes
1 Given the somewhat vague nature of Ms. Runner's request, the Cabinet's request for clarification was reasonable; such a response is not properly characterized as a denial. See 04-ORD-198; 04-ORD-193; 03-ORD-067. To its credit, the Cabinet has expressed a willingness to cooperate in determining which records Ms. Runner is requesting.
2 In relevant part, KRS 61.8715 provides:
The General Assembly finds an essential relationship between the intent of [the Open Records Act] , dealing with the management of public records, and of [the chapters] dealing with the coordination of strategic planning for computerized information systems in state government; and 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 these statutes.
3 KRS 61.872(4) provides: "If the person to whom the application is directed does not have custody or control of the public record requested, the person shall notify the applicant and furnish the name and location of the official custodian of the agency's public records. "