Opinion
Opinion By: Gregory D. Stumbo,Attorney General;James M. Ringo,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health & Family Services violated, or otherwise subverted the intent of the Open Records Act in the disposition of Alicia K. Polston's March 6, 2006, request for "the proposal and score sheets for the successful bidder in the FIVCO region for Community Collaboration for Children services for the contract period ending June 30, 2006." For the reasons that follow, we conclude the Cabinet did not violate the Act, insofar as it cannot produce records that have been lost or no longer exist. However, the failure of the Cabinet to adequately safeguard and manage its records, so that they can be retrieved and made available for inspection, constitutes a subversion of the intent of the Act, and may also constitute a violation of KRS Chapter 171 relating to the management of public records.
On March 14, 2006, Ms. Polston, Financial Director, Lake Cumberland Community Action Agency (LCCAA) faxed a follow-up letter to the Cabinet stating that as of that date she had received no response to her March 6, 2006, open records request.
By letter dated March 14, 2006, Jonathan E. Copley, Executive Director, Office of Contract Oversight (OCO), Cabinet for Health and Family Services, apologized for the delay in providing the requested records and advised Ms. Polston that "we are searching for the documentation and will contact you as soon as it is located. 1 With the combination of the former Cabinet for Families and Children and Cabinet for Health Services we are experiencing problems finding some of the documentation that one or the other Cabinet may have had possession of."
On March 16, 2006, Athena Cooper VanArsdale, Staff Attorney, LCCAA, responded to Mr. Copley's letter addressing the Cabinet's inability to find the requested records and suggested the Cabinet "contact the successful vendor for the FIVCO region for an exact copy of the proposal since there does not appear to be any of the numerous copies required as per the Cabinet's RFP on file."
On the same day March 16, 2006, Bruce B. Brown, Executive Director, LCCAA, initiated the instant appeal on behalf of Ms. Polston and LCCAA.
After receipt of notification of the appeal, John H. Walker, Assistant General Counsel, Office of Legal Services, on behalf of the Cabinet, provided this office with a response to the issues raised in the appeal. In his March 27, 2006, response, Mr. Walker advised, in relevant part:
Before receiving the March 16, 2006 letter from LCCAA, the OCO [Office of Contract Oversight] had already decided to contact both the winning vendor in the FIVCO Region and the Finance and Administration Cabinet for help locating the requested documents. At this time, the OCO has simply been unable to locate the documents requested for the FIVCO region. It logically follows that the OCO cannot comply with LCCAA's request at this time. See 02-ORD-144, p. 3.
The problems encountered by the Office of Contract Oversight in locating the records sought have caused the delay, not any effort by the agency to deny the requestor the records. The Office will continue to exhaust every avenue it can find to locate the documents. If successful, LCCAA will be sent the material; if not, the LCCAA will be further advised of the agency's lack of success.
On April 4, 2006, Ms. VanArsdale, LCCAA, provided this office with a reply to Mr. Walker's response, contending in part, that the Cabinet must either affirmatively indicate that no written contract exists or provide LCCAA with copies of the actual contract, and that in the present situation, the Cabinet has done neither and therefore has not discharged its duties under the Open Records Act.
The Attorney General has long recognized that a public agency cannot afford a requester access to records due to their nonexistence, regardless of whether their nonexistence is attributable to destruction or loss. See, e.g., 05-ORD-141; 01-ORD-176; 98-ORD-176. We have also recognized that it is not our duty to investigate in order to locate documents which do not exist or have been destroyed. OAG 86-35. As we observed in OAG 86-35, at page 5, "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." However, since July 15, 1994, when the amendments to the Open Records Act took effect, we have applied a higher standard of review relative to denials based on the nonexistence, or as here the loss, of requested records. In order to satisfy its statutory burden of proof, a public agency must, at a minimum, document what efforts were made to locate the missing records or offer some explanation as to how essential records, such as bid documents, were lost. Because the Cabinet failed to provide even a minimal explanation for the loss of the requested records, we are compelled to conclude that the Cabinet failed to adequately manage its records. The loss or destruction of a public record creates a presumption of records mismanagement, but this presumption is rebuttable. The Cabinet failed to overcome the presumption because it offered no explanation for the loss of the records.
Thus, while we do not find, as a matter of law, that the Cabinet violated the Open Records Act by failing to afford access to the requested records, 2 those records having apparently been lost, we do find that the Cabinet subverted the intent of the Act by failing to establish effective controls over the creation, maintenance, and use of those records, and to properly educate its employees on their records management duties, thus frustrating full access to its records. 05-ORD-141.
Moreover, the Open Records Act, as amended in 1994, 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. For this reason, we have referred this matter to the Kentucky Department for Libraries and Archives for additional review, for a determination of whether the Cabinet violated the provisions of KRS Chapter 171 relative to its duty to manage and preserve its public records, and to establish safeguards against removal or loss of those records.
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.
Bruce B. BrownExecutive DirectorLake Cumberland Community Action AgencyP. O. Box 83023 Industry DriveJamestown, KY 42629-0830
Jonathan E. CopleyExecutive DirectorOffice of Contract OversightCabinet for Health and Family Services275 E. Main Street, 4E-EFrankfort, KY 40621
John H. WalkerOffice of Legal ServicesCabinet for Health and Family Services275 E. Main Street, 5W-BFrankfort, KY 40621
Footnotes
Footnotes
1 The Cabinet, in its response to this office, advised that the OCO had explained to the LCCAA within three days of receipt of the March 6 request, by telephone, that it had been unable to locate the requested records. The failure to respond to the request in writing within three days of its receipt was a procedural violation of the Open Records Act. KRS 61.880(1); KRS 61.872(5); 01-ORD-220.
2 In its response to the letter of appeal, the Cabinet advised that the Office of Contract Oversight had indicated it would contact both the winning vendor in the FIVCO Region and the Finance and Administration Cabinet for help locating the requested documents.