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 Magoffin County Board of Education violated the Open Records Act in the disposition of Robert S. Cribbs' September 8, 2005, request for copies "of the application(s) for emergency certification that [the Board] submitted to the Kentucky Education Professional Standards Board for any and all Magoffin County teaching positions during the 2005-06 school year. " Having received no response to this request, Mr. Cribbs initiated this appeal to the Attorney General. For the reasons that follow, we find that although the Board violated KRS 61.880(1) in failing to issue a timely written response to Mr. Cribbs' request, it ultimately discharged its statutory duty under the Act by notifying him that no responsive records exist because the Board received no requests for emergency certification in the 2005-2006 school year. In light of this assertion, we conclude that this appeal does not raise records management issues that warrant review by the Kentucky Department for Libraries and Archives pursuant to KRS 61.8715.
In a letter directed to Mr. Cribbs following commencement of his appeal, a copy of which was transmitted to this office, Magoffin County Superintendent Donald F. Cecil explained that as of September 19, 2005, "there has been no request for an emergency certification for any individual employed, or to be employed, with Magoffin County Schools for the 2005-2006 school year. " With reference to the Board's failure to respond, Superintendent Cecil observed:
There seems to have been some confusion concerning the request and it simply did not get to the proper personnel for processing. There was no intentional attempt to ignore the request.
In closing, Superintendent Cecil noted that it was his understanding that Mr. Cribbs had "received a response from the Kentucky Education Professional Standards Board that stated no such emergency request has been made by the district," thus verifying the Board's position.
It is the decision of this office that the Magoffin County Board of Education's failure to respond to Mr. Cribbs' September 8, 2005, request in a proper and timely fashion constituted a violation of KRS 61.880(1). That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In construing KRS 61.880(1), the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig., Ky. App., 926 S.W.2d 856, 857 (1996). As noted above, that response must be in writing and issued within three business days of receipt of the request. "A limited and perfunctory response," the Court concluded, does not "even remotely compl[y] with the requirements of the Act. . . ." Id. The failure to issue any response is especially egregious. While we are pleased to learn that the Magoffin County Board of Education did not intentionally ignore Mr. Cribbs' request, we urge the Board to review the cited provision, and re-examine existing policies, to insure the timely processing of future open records requests.
Turning to the substantive issue on appeal, we find that the Board discharged its statutory duty under the Open Records Act by notifying Mr. Cribbs that because it had received no requests for emergency certification in the 2005-2006 school year, no documents exist that are responsive to his request. On this issue, the Attorney General has frequently observed:
[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.
97-ORD-116, p. 1, 2. Thus, in 94-ORD-140, we affirmed the Ohio County Sheriff's Department's denial of a request for investigative records on the basis the records did not exist when the sheriff explained that his office did not conduct the investigation. See also, 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by University's regulations); 98-ORD-23 (Department for Libraries and Archives explains that certification documents for agency compliance with records management policies do not exist because Department has no formal certification program due to limited fiscal and staff resources); see also, 04-ORD-191; 05-ORD-047. Conversely, in 97-ORD-103, 97-ORD-116, and 97-ORD-146, we held that because the public agencies failed to offer even a minimal explanation for the nonexistence of records which were apparently required by law, we could not determine if the agencies met their statutory burden of proof under KRS 61.880(2)(c).
This appeal is more closely akin to 94-ORD-140, 97-ORD-17, and 98-ORD-23 insofar as the Board offers a plausible explanation for the nonexistence of the requested records. Simply stated, the Board has no responsive records because it has received no requests for emergency certification in the 2005-2006 school year, a fact confirmed by the Kentucky Education Professional Standards Board. Although there may be occasions when, under the mandate of KRS 61.8715, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants intentional inquiry by this office or the Department for Libraries and Archives. The records access issues raised in this appeal are factual, and not legal, in nature. We therefore affirm the Magoffin County Board of Education's denial of Mr. Cribbs' request on the basis of the nonexistence of the records requested.
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.