Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
[EDITOR'S NOTE: THE ORIGINAL SOURCE CONTAINED ILLEGIBLE WORDS AND/OR MISSING TEXT. THE LEXIS SERVICE WILL PLACE THE CORRECTED VERSION ON-LINE UPON RECEIPT.]
Open Records Decision
At issue in this appeal is whether the Whitley County Clerk violated the Kentucky Open Records Act in denying the request of Ronald Rose for copies of "the payroll records of the Whitley County Court Clerk, Tom Rains['] Office[,] for 1994 and for 5 years prior, consecutively." By affirmatively indicating to Mr. Rose that no responsive records exist in a timely written response, and explaining that payroll records are destroyed after each audit in accordance with the Disposition Instructions for the applicable series of the Local Government General Records Retention Schedule, the Clerk complied with the Act as to any records which are potentially responsive to Mr. Rose's request, with the possible exception of the "Individual Master Earning Record." To the extent any such record exists, the Clerk should provide Mr. Rose with a copy after redacting any exempt information.
By letter dated March 21, 2006, Mr. Rose directed his request to Whitley County Clerk Tom Rains, emphasizing that his request does not "include any information that is not public record. " On March 23, 2006, Mr. Rains advised Mr. Rose in writing, that according to the Disposition Instructions of the Local Government Records Retention Schedule, his office is required to destroy records of the type requested after each audit. In a letter received by this office on March 29, 2006, Mr. Rose initiated this appeal from the denial of his request.
Upon receiving notification of Mr. Rose's appeal from this office, Paul K. Winchester, Whitley County Attorney, responded on behalf of the Clerk, enclosing a copy of the request at issue, the Clerk's response, and the "portion of Records Retention Schedule pertinent to this matter." Pursuant to the Disposition Instructions of the Local Government General Records Retention Schedule, K1, the following records must be destroyed "after audit" :Series No.Record TitleRetain at Agency (Years)L5019Yearly Payroll Register2L5020Monthly Summary of Wages Earned3L5021Payroll Register for Each Pay Period2L5022Time and Attendance Record File3L5024Wage and Tax Statements/W-25
However, Series No. L5018 , entitled "Individual Master Earning Record (a.k.a. Payroll Register & Payroll Record File. This series documents the earnings of individual employees for the duration of their employment. May include the directory information [exempt by virtue of KRS 61.878(1)(a)], gross pay, net pay, all withholdings, vacation and sick leave, pay scale, payment date, payroll check #, and related information)," is not to be destroyed until "70 years from date first employed." 1 Accordingly, the Clerk should still have this responsive record assuming that his office ever generated same.
As long recognized by the Attorney General, a public agency cannot afford a requester access to records which it does not possess or 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 Clerk's Office obviously cannot produce for inspection or copying records which it does not have. 02-ORD-118, p. 3. To clarify, 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 Clerk 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. 2 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. 3
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 the burden of proof imposed by KRS 61.880(2)(c), 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). To his credit, the Clerk has demonstrated a commitment to managing his records so as to facilitate access, thereby acknowledging the "essential relationship" between the two consistent with KRS 61.8715; any error or omission was apparently unintentional. When, as is the case here, the agency denies the existence of the requested records, and the evidence supports rather than refutes that contention, further inquiry is unwarranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83.
Because the Clerk made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," as evidenced by the record, the Clerk complied with the Act, regardless of whether the search yielded any results, by notifying Mr. Rose that no responsive records were found, and providing a credible explanation as to why any such records were destroyed with the noted exception. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-38; 97-ORD-161; OAG 91-101; OAG 90-26; OAG 86-38. 4 In order to fully discharge his duty under the Open Records Act, the Clerk should affirmatively indicate in writing to Mr. Rose whether his office maintains an "Individual Master Earning Record," or the equivalent thereof, and provide Mr. Rose with a copy of any responsive record upon receipt of advance payment, including postage if appropriate. KRS 61.874(1).
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 Series No. L5023, entitled "Individual Payroll Authority File," cannot be destroyed until "3 years after termination of employment or 3 years after superseded and audit. " Given the timeframe of Mr. Rose's request, any records falling into this category have already been properly destroyed.
2 Likewise, questions relating "to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3. See 04-OMD-182; 04-ORD-032; 02-ORD-89.
3 [ILLEGIBLE FOOTNOTE]
4 Pursuant to KRS 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 furnish the name and location of the official custodian of the agency's public records. "