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 Contract Management Branch of the Department of Corrections violated the Kentucky Open Records Act in failing to adequately respond upon receiving the request of Sally Wasielewski "to inspect all contractual agreements between the Department of Corrections and any of its departments or divisions with David Brooks, Certified Counselor, Bowling Green, Kentucky to provide sexual offender counseling to Kentucky probationers and parolees." Although the DOC admittedly failed to issue an adequate written response within five business days, as required by KRS 197.025(7), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), the DOC has now complied with the Act by affirmatively indicating to Ms. Wasielewski that no such records exist. With the exception of the noted procedural error, the DOC did not violate the Act; a public agency cannot produce for inspection records which do not exist.
On January 4, 2006, Ms. Wasielewski directed her request to Eric Buckley, Contract Management Branch Manager, via facsimile, requesting a "timely response." Alleging that her request "has never been adequately responded to," Ms. Wasielewski initiated this appeal in a letter received by this office on February 23, 2006. According to Ms. Wasielewski, "one Kevin Pangburn" left a message with her office on January 9, 2006; Ms. Wasielewski returned Mr. Pangburn's call on January 10, 2006, at which time he indicated that Mr. Buckley was not the person to whom the request should be directed, "that he could not disclose Erick Buckley's job duties," and that he would relay her request to General Counsel immediately. "That was the entire conversation."
On January 20, 2006, Mr. Buckley advised Ms. Wasielewski via electronic mail that he had forwarded her request to Mr. Pangburn, Director of the Division of Mental Health. In Ms. Wasielewski's view, this response was neither adequate nor timely. To date, "no information has been received from Mr. Pangburn or any of his staff or anyone else in the [DOC] either stating that the information does or does not exist or that it is an exception to the Open Records [Act] or that it does exist and will be provided." To this extent, Ms. Wasielewski is correct in asserting the DOC violated the Open Records Act.
Upon receiving notification of Ms. Wasielewski's appeal from this office, Emily Dennis, Staff Attorney, responded on behalf of the DOC. At the outset, the DOC "admits that it has failed to timely and adequately respond to Ms. Wasielewski's request; however, this procedural violation notwithstanding, the undersigned has investigated the matter and hereby informs Ms. Wasielewski that the DOC does not possess any records responsive to her request." Acknowledging that she "lacks sufficient knowledge to confirm whether Ms. Wasielewski's allegations regarding a telephone conversation with Mr. Pangburn are accurate," Ms. Dennis correctly asserts that it is not the role of this office in considering an open records appeal to resolve such a factual dispute. 1
In any event, the DOC acknowledges that Mr. Buckley's response by e-mail "did not comply with the Open Records Act. " 2 However, Ms. Wasielewski's is also incorrect "to the extent she states that the open records turnaround is three days." Citing KRS 197.025(7), 3 incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 4 Ms. Dennis correctly observes the DOC has five business days in which to respond upon receipt of an open records request. Accordingly, further consideration of this procedural issue is unwarranted. 5
In addressing the substantive issue presented, Ms. Dennis correctly notes that a correct response from Mr. Buckley "would have informed Ms. Wasielewski that the DOC Contract Management Branch does not administer the Sex Offender Treatment Program (SOTP)," and that "for copies of contract records relative to SOTP, to the extent such records exist," Ms. Wasielewski should direct her request to the following address: 6
Ms. Kathy Peterson, LP
Program Administrator
Sex Offender Treatment Program
Kentucky State Reformatory
3001 W. Highway 146
LaGrange, KY 40032
To clarify, the Contract Management Branch "deals solely with administering DOC agreements with community service centers and private prisons and has absolutely no other role in the administration of DOC contracts." However, the "irony of this appeal" is that Ms. Dennis checked with Ms. Peterson and, "in fact, no records exist in the DOC responsive to Ms. Wasielewski's request."
As correctly observed by Ms. Dennis, this office has consistently recognized that "a public agency cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98." To the contrary, an agency "discharges its duty under the Open Records Act by affirmatively so stating. 04-ORD-43; 99-ORD-150." Accordingly, "Mr. Buckley's response was procedurally deficient," but there "is no basis on which to find that the DOC has denied Ms. Wasielewski access to records in violation of the Open Records Act, since the DOC does not possess records responsive to her request." We agree.
As long recognized by the Attorney General, a public agency cannot afford a requester access to records which it does not possess or records which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 98-ORD-200; 91-ORD-17; OAG 87-54; OAG 83-111. A public agency such as the DOC obviously cannot produce for inspection or copying records which it does not have. 02-ORD-118, p. 3. Rather, the right to inspect attaches only after the requested records are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. In addressing the obligations of a public agency denying access to public records on this basis, the Attorney General has consistently observed that an agency's inability to produce records due to their apparent nonexistence is "tantamount to a denial, and it is incumbent on the agency to so state in clear and direct terms." 02-ORD-144, p. 3, citing 01-ORD-38, p. 9; 04-ORD-205.
Accordingly, this office 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," with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively indicating that no responsive records exist (or are in the custody of the agency) as the DOC did here. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 04-ORD-046, p. 4; 03-ORD-205, p. 3. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 03-ORD-205, p. 3; 99-ORD-98. Under circumstances like those presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2; 04-ORD-205; 02-ORD-144; 94-ORD-140. To the contrary, the role of the Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(2)(a); this office is without authority to deviate from that statutory mandate.
In 1994, the General Assembly recognized an "essential relationship between the intent of [the Open Records Act] and those statutes "dealing with the management of public records, " and "the coordination of strategic planning for computerized information systems in state government" with the enactment of KRS 61.8715. To ensure "the efficient administration of government and to provide accountability of government activities, public agencies are required to maintain their records according to the requirements of these statutes." Id. Since this provision of the Open Records Act took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based upon the nonexistence of the requested records.
In order to satisfy its burden of proof, an agency must offer some explanation for the nonexistence of the requested records (or lack of custody, as the case may be) at a minimum. See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 94-ORD-140 (records of subject investigation not in sheriff's custody because sheriff did not conduct the investigation). When, as is the case here, the agency denies the existence (or denies having possession) of the requested records, and the record supports this assertion, further inquiry is not warranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83. Because the DOC cannot produce for inspection or copying records which it does not have or which do not exist, ultimately notified Ms. Wasielewski that no responsive records exist, and provided a credible explanation as to why, this office affirms the position of the DOC.
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 With respect to disputes of this nature, 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 [the requester] asked to inspect, and 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.
2 A copy of the e-mail from Mr. Buckley to Ms. Wasielewski dated January 20, 2006, is attached to Ms. Dennis' response; Ms. Wasielewski's response ("a day late and a dollar short (open records is 3 day turn around) thanks") of January 23, 2006, is also included.
3 Pursuant toKRS 197.025(7):
KRS 61.880(1) to the contrary notwithstanding, upon receipt of a request for any record, the department shall determine within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, whether the record shall be released.
4 KRS 61.878(1)(l) excludes from application of the Act:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
5 See 05-ORD-110 for the analysis employed by this office in determining whether an agency has complied with the procedural requirements codified at KRS 61.880(1).
6 Pursuant toKRS 61.872(4):
If the person to whom the application if directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.