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 Food Safety Branch of the Cabinet for Health and Family Services violated the Kentucky Open Records Act in the disposition of Mark S. Ohlmann's request for "copies of all documents, including without limitation, emails and memorandums concerning individuals and organizations serving on the Food Safety and Defense Task Force (also referred to as the Food Safety Task Force and the Food Safety and Security Task Force) and each affiliated subcommittee) ." Although the Food Safety Branch initially failed to comply with KRS 61.872(5), the CHFS ultimately provided Mr. Ohlmann with a copy of all existing records which are responsive to his request. Having affirmatively indicated as much to Mr. Ohlmann and offered a credible explanation for the lack of additional records, the CHFS has discharged its duty under the Open Records Act; a public agency cannot produce for inspection or copying that which it does not have.
By letter directed to Christine Atkinson, Branch Manager, on October 18, 2006, Mr. Ohlmann, CFSP, Kentucky Food Safety Consulting, acknowledged "submission of a prior unfulfilled open records request for contact information and group affiliation of individuals serving on the Food Safety and Defense Task Force [,]" noting that his current request "supplants the prior request dated August 18th 2006." More specifically, Mr. Ohlmann requested "access to and/or copies of the following":
. Current mailing lists for the task force and each subcommittee;
. Affiliations (e.g., professional, governmental, business) of each task force member and subcommittee member;
. Qualifications (e.g., credentials, education, work experience) required to serve on this task force;
. The selection process used to assemble task force members and subcommittee members; and
. Letters and invitations-to-participate which were previously sent to task force and subcommittee members.
Because the Task Force and subcommittees qualify as public agencies within the meaning of KRS 61.805(2), Mr. Ohlmann also requested "access to and/or copies of" the following:
. Recorded minutes and written minutes of any task force and subcommittee meetings held in 2006. Pursuant to KRS 61.835 these minutes are a matter of public record;
. A schedule of all regular meetings and special meetings of the task force and subcommittees for 2006 and 2007. Pursuant to KRS 61.820 schedules shall be made available to the public; and
. Conditions for public attendance at task force regular and special meetings. [See KRS 61.840.]
Upon receipt of Mr. Ohlmann's request, Ms. Atkinson issued a written response advising him that she was "working to fulfill the depth of this request. Due to the number of specific documents requested I will forward to legal [counsel] for guidance and assurance that this agency has met the requirements." In closing, Ms. Atkinson thanked Mr. Ohlmann for his "patience in this matter."
By letter dated October 27, 2006, Mr. Ohlmann initiated this appeal because seven business days had elapsed but no records had been disclosed. As correctly observed by Mr. Ohlmann, no specific reasons were offered to explain the delay in processing his request or disclosure of these public records; nor did the Food Safety Branch designate the earliest date certain on which the records would be disclosed. According to Mr. Ohlmann, the Food Safety Branch took seven weeks to process his initial request, and the "information ultimately received was incomplete."
Upon receiving notification of Mr. Ohlmann's appeal from this office, Jon R. Klein, Assistant Counsel, CHFS, responded on behalf of the Food Safety Branch. As explained by Mr. Klein:
As you are well aware, Kentucky's Open Records Act was recently amended by the General Assembly to include provisions relating to Homeland Security. See KRS 61.878(1)(m). As the name of the Task Force suggests, the Food Safety and Defense Task Force deals with issues that relate to Homeland Security. The Cabinet has a duty to protect the confidentiality of information exempted from disclosure under the Homeland Security provisions of the Open Records Act. Thus, it was entirely reasonable to refer a request for documents relating to the Task Force to the Cabinet's Office of Legal Services prior to releasing the requested documents.
Upon review, the CHFS Office of Legal Services determined that "none of the requested documents in the possession of the Cabinet are exempt under" KRS 61.878(1)(m). As a result, "all of the documents in the Cabinet's possession that are responsive to Mr. Ohlmann's request" were forwarded to him on the date of Mr. Klein's response, November 7, 2006. However, the Office of Legal Services determined that "some of the phone numbers for Task Force members in the Cabinet's possession are home or personal cellular phone numbers. Those numbers have been redacted in accordance with KRS 61.878(1)(a) and"
Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825 (1994). 1 Because "all of the requested information in the Cabinet's possession is being provided to Mr. Ohlmann," the CHFS argues that his appeal is now moot per 40 KAR 1:030, Section 6. 2
In reply, Mr. Ohlmann disagrees because, in his view, the response of the CHFS was incomplete relative to meeting minutes, e-mails and memoranda concerning Task Force members, and the schedule of meetings in 2006-2007; the CHFS also failed to disclose the requested letters and invitations to participate, explain the selection process used to assemble Task Force members, and list the qualifications required to serve on the Task Force. 3 By letter dated November 28, 2006, Mr. Klein supplemented his response on behalf of the CHFS. Reiterating the CHFS has "turned over all responsive documents" in its possession, Mr. Klein addresses each allegation in turn.
In reference to meeting minutes, "Mr. Ohlmann stated that he requested 'both the record[ed] AND written minutes of any task force meeting held in 2006,' and that he received the recorded minutes while the written minutes were withheld." As explained by Mr. Klein, "Mr. Ohlmann is incorrect. The September 28, 2006 task force meeting was not recorded by the Cabinet. Only written minutes were created and those minutes were produced in response to his request." With respect to e-mails and memoranda, the "current support staff for the Task Force is unaware of any emails to task force members prior to her start date with the Cabinet in March 2006." Since then, "the only emails to task force members have been the two emails produced, which give information and instructions regarding the September 28, 2006 meeting." Regarding the schedule of meetings in 2006 and 2007, "the September 28, 2006 meeting was the only meeting held in 2006 at the time of Mr. Ohlmann's request. No future meetings have yet been scheduled." When future meetings are scheduled, "notice to the public shall be given in compliance with the Open Meetings Act." According to Mr. Klein, the CHFS has "no documents that specifically address notice to the public regarding task force meetings other than the text of the statutes themselves, which are readily available online at: http://www.lrc.state.ky.us/." Regarding letters and invitations to participate, the CHFS "provided copies of emails and a memorandum sent to task force members which informed them of the task force meeting. These constituted the invitations to participate that Mr. Ohlmann seeks."
In addressing Mr. Ohlmann's request as to qualifications required and the selection process used to assemble Task Force members, Mr. Klein notes that Mr. Ohlmann "provided more information on this than was available through the Cabinet." More specifically, the press release provided by Mr. Ohlmann indicates that the Task Force "was created in 1999 (two years prior to the release dated of August 7, 2001) by Kentucky Agriculture Commissioner Billy Ray Smith. Only later was the task force transferred to the Cabinet for Health Services (CHS), which eventually merged with the Cabinet for Families and Children (CFC) to become the current [CHFS]." To clarify, the Task Force is "composed of government agencies and industry representative organizations. Some organizations no longer participate and some designated agents of task force member organizations have changed since that transfer"; however, the CHFS "has not added any new members to the list of task force members since the task force was transferred to the Cabinet." Nor does the CHFS possess any documents "which list qualifications for membership or which detail the selection process used to assemble the task force. " If Mr. Ohlmann would like more information regarding the qualifications and selection process, the CHFS suggests that he contact the current Commissioner of Agriculture, Richie Farmer; the contact information for Mr. Farmer is provided in accordance with KRS 61.872(4). 4 In conclusion, Mr. Klein reiterates that "all documents in the possession of the Cabinet responsive to Mr. Ohlmann's request were provided to him. No other responsive documents exist." Citing 02-ORD-144, Mr. Klein argues that the CHFS has fulfilled its obligations under the Open Records Act. Based upon the evidence of record, this office agrees.
By initially failing to give a "detailed explanation" of the cause for delay and the place, time and "earliest date certain" on which the records would be available for inspection, the CHFS violated KRS 61.872(5). 5 Having engaged in a thorough analysis of this procedural issue in a previous appeal involving the CHFS, this office will not belabor the issue here; the reasoning of 05-ORD-134, a copy of which is attached hereto and incorporated by reference, is equally applicable on the current facts. While consulting the Office of Legal Services prior to releasing any records was entirely reasonable, the response of the Food Safety Branch was procedurally deficient insofar as both of these mandatory elements were absent.
Turning to the substantive issue presented, this office finds the ultimate disposition of Mr. Ohlmann's request satisfies the statutory obligations of the CHFS. 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 CHFS obviously cannot produce for inspection or copying records which it does not have. 02-ORD-118, p. 3. To clarify, the right of inspection 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. 6
Accordingly, this office has consistently 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 CHFS ultimately 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. 7 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. 8
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). When, as is the case here, the agency denies having possession (or indicates that no such records exist), of the requested records, and the record does not refute that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83.
Because the CHFS 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 CHFS complied with the Act, regardless of whether the search yielded any results, by notifying Mr. Ohlmann that no further responsive records were found, and providing a credible explanation as to why any records which are responsive would be in the custody of the Department of Agriculture aside from those already provided. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-38; 97-ORD-161; OAG 91-101; OAG 90-26; OAG 86-38. 9
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 Such action is consistent with governing precedent; see 06-ORD-036 and authorities cited therein. However, redaction of information presents a justiciable issue so this appeal could not properly be considered moot even if Mr. Ohlmann had not otherwise challenged the disposition of his request.
2 In accordance with 40 KAR 1:030, Section 6: "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 consistently recognized that if access to public records which are the subject of a request is initially denied but subsequently granted, the "propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. With regard to records provided in their entirety to Mr. Ohlmann, Mr. Klein is correct in asserting that any related issues would be moot per 40 KAR 1:030, Section 6.
3 Although the CHFS does not raise this argument, public agencies are not statutorily obligated to honor requests for information; Mr. Ohlmann's request can properly be characterized as a request for information rather than existing public records insofar as he asks the CHFS to list the affiliations and qualifications of Task Force members as well as the conditions for meetings. On this issue, 05-ORD-006, a copy of which is attached hereto and incorporated by reference, is controlling.
4 Pursuant to KRS 61.872(4): "If the person to whom the application is 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. "
5 KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
6 [ILLEGIBLE FOOTNOTE]
7 As consistently recognized by this office, the Open Records Act does not empower the Attorney General to order the creation of records. See 96-ORD-139; OAG 89-66; OAG 89-32; OAG 83-111; OAG 80-308; OAG 79-547; OAG 78-231. In 95-ORD-48, the Attorney General reaffirmed this longstanding principle in light of recent amendments to the Open Records Act, expressly declining "the invitation to invade the prerogative of public agencies in determining, 'in accordance with standards, rules and regulations prescribed by the Department for Libraries and Archives,' what records they must create. KRS 171.640." Thus, our office has affirmed the principles articulated in OAG 78-231 and its progeny relative to records creation, concluding that the Attorney General "cannot order an agency to create records, or declare its failure to do so a subversion of the intent of the Open Records Act. " 96-ORD-139, p. 2. See 98-ORD-5 for additional discussion of this issue. As a corollary to this proposition, the Attorney General has often noted that a public agency cannot afford a requester access to nonexistent records. 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.
8 [ILLEGIBLE FOOTNOTE]
9 [ILLEGIBLE FOOTNOTE]