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 Education Cabinet violated the Kentucky Open Records Act in partially denying the request of Taylor Carter for "All correspondence, including management staff for recommendations, justifications, performance, eligibility, availability of funding, and approval for the 2005 Achievement for Continuing Excellence (ACE) Award in regard to the unclassified personnel, the Divisional Director II positions within the Education Cabinet" and a "detailed account by description of expenditures and programs as it relates to the approximately two million dollars the Office of Vocational Rehabilitation provides for support of programs within the Education Cabinet." Although the Cabinet cannot produce for inspection or copying records which do not exist, nor is the Cabinet statutorily required to honor a request for information or compile a list/create a record to satisfy a request, the Cabinet is obligated to make any existing nonexempt records which are potentially responsive to Mr. Carter's request available for inspection during normal office hours if he wishes to exercise this option; the Cabinet otherwise complied with the Open Records Act in providing Mr. Carter with a copy of any existing documentation which is responsive to his request.
By letter directed to Secretary Laura Owens on February 9, 2007, Mr. Carter requested submitted the aforementioned request. On February 15, 2007, Tamela A. Biggs, Assistant Counsel, Office of Legal Services, responded on behalf of the Cabinet, advising Mr. Carter that his request had been forwarded to her office for review and response. In addressing the first item of Mr. Carter's request, Ms. Biggs further advised him that the Cabinet was unable to respond because agency personnel would have to "research their records to ascertain who the recipients were since [he] did not provide that information." A subsequent response was going to be "forthcoming within the next five business days." In denying the second item, Ms. Biggs correctly observed that the "purpose of the Open Records Act is to provide access to public records which, by law, are not exempt. OAG 79-547; OAG 85-88." According to Ms. Biggs, the Cabinet does not possess "a detailed account" ; the records which Mr. Carter seeks "do not exist and the Education Cabinet is not obligated by law to create records to conform to [his] request." Citing a line of decisions issued by this office, Ms. Biggs correctly asserts that a public agency "' is not obligated to create records to satisfy a particular open records request[,]" nor was the Open Records Act "'intended to provide a requester with particular information or to require public agencies to compile information to conform to the parameters of a given request."
By letter dated February 17, 2007, Mr. Carter initiated this appeal from the disposition of his request. In clarifying the nature of his request, Mr. Carter explains that he "was never questioning the legality of the (ACE) Awards or the granting of these awards by the appointing authority" but "was questioning the smell test (Unclassified personnel and cleaning up the mess in Frankfort)." Mr. Carter is "more concerned about the 2 million dollars of federal money allocated to the Office of Vocational Rehabilitation to provide services to person[s] with disabilities that is provided to the Education Cabinet." Accordingly, Mr. Carter asks this office to "clarify" Ms. Biggs' response.
Upon receiving notification of Mr. Carter's appeal from this office, Ms. Biggs supplemented her initial response in a letter dated February 28, 2007. In response to Mr. Carter's request for correspondence relating to 2005 ACE Awards for the Divisional Director II positions within the Cabinet, Ms. Biggs attached "copies of the recommendations and the P-1's for each." 1 As to his request for "a detailed account" of the kind requested, "the Cabinet's response remains the same." Mr. Carter's request "is for a document akin to an itemized statement or account ledger sheet, listing the account balance, the amount of each expenditure and the reason for, or recipient of, same." Ms. Biggs has "spoken to knowledgeable individuals within the Cabinet, as well as within the Office of Budget and Administration in particular, to ascertain if the agency [has] a document which would fulfill the parameters of Mr. Carter's request. The Cabinet does not possess such a document." Like other programs which receive federal funding, "the monies received from the Office of Vocational Rehabilitation are transferred to the Cabinet and placed in a pooled account with funding from other federal programs. The funds are then utilized to cover the indirect costs incurred by the Cabinet associated with the various programs." In response to Mr. Carter's request for clarification, Ms. Biggs reiterates her previous response, emphasizing that the Cabinet "cannot provide what it does not have."
Early on, this office clarified that "[t]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; 04-ORD-144. 2 On this basis, the Attorney General has consistently held that "requests for information as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080. In addressing this issue, the Attorney General has recognized:
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
04-ORD-080, p. 13, citing OAG 87-84. See also OAG 90-19; OAG 89-81; OAG 89-77. Of particular relevance here:
This office has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. See, e.g., OAG 76-375; OAG 79-547; OAG 81-333; OAG 86-51; OAG 90-101; 93-ORD-50. At page 2 of 93-ORD-50, we observed:
[T]he Kentucky Open Records Act was not intended to provide a requester with particular "information," or to require public agencies to compile information, to conform to the parameters of a given request.
02-ORD-165, p. 4. Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id. p. 5, OAG 91-12, p. 5. A review of the statutory language upon which these decisions are premised, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records ") (emphasis added), validates this position. In other words, the Cabinet is not statutorily required to honor a request which is properly characterized as a request for information. However, the analysis does not end there.
"While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (original emphasis). In keeping with this position, the Attorney General has noted that when a requester is unable to identify the records sought for inspection with sufficient specificity, or wishes to extract information which has not already been compiled, he "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. " 98-ORD-17, p. 10, citing OAG 76-375, p. 3. To the extent any exist, the Cabinet must provide Mr. Carter with access to potentially responsive records so that he can extract the information himself, assuming that Mr. Carter wishes to exercise this option. 3 That being said, the Cabinet did not violate the Act in denying access to nonexistent records.
As long recognized by the Attorney General, a public agency is not required to honor a request for records which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 99-ORD-198; 98-ORD-200; 91-ORD-17; OAG 91-112; OAG 87-54; OAG 83-111. It stands to reason that the Cabinet cannot produce for inspection or copying that which it does not have. 02-ORD-118, p. 3. To clarify, the rights 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. 4 In addressing the obligations of a public agency when denying access to public records on this basis, the Attorney General has observed:
[A]n 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. 01-ORD-38, p. 9 [other citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient.
02-ORD-144, p. 3; 04-ORD-205.
Accordingly, this office has repeatedly 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 so indicating as the Cabinet 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. When a public agency denies the existence of requested records, it is "not incumbent on this office to conduct an investigation in order to locate the records whose existence or custody is in dispute" absent a reason to question the truthfulness of the agency's assertion. 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(1); this office is without authority to deviate from that statute.
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 under KRS 61.880(2)(c), a public agency must offer some explanation for the nonexistence of the requested records 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); 03-ORD-059 (radio run tapes were erased and reused in a manner consistent with applicable records retention schedule and were therefore not available for review); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 98-ORD-47 (audit not in University's custody because it was never reduced to writing); 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 investigation not in sheriff's custody because sheriff did not conduct the investigation). Under circumstances like those presented, further inquiry is not warranted in the absence of contrary evidence. 5 As in the cited decisions, the record is devoid of evidence to raise the issue of good faith; rather, the explanation provided by the Cabinet on appeal is credible.
Assuming the Cabinet made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," as the record indicates, the Cabinet cannot be said to have violated the Act in this regard. 05-ORD-109, p. 3. To the extent Mr. Carter is questioning the content of the records, such an issue is not justiciable in this forum; the Attorney General has long recognized that "questions relating to the verifiability, authenticity, or validity or records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3 (reporter questioned the validity of invoices produced in response to request; the Attorney General advised that the relief sought was unavailable under the Act). See also 05-ORD-008 (questions concerning the value of information contained in records produced for public inspection are not justiciable in Open Records appeal); 04-OMD-182 (questions regarding the authenticity of an agency's meeting minutes were not appropriate for review by the Attorney General); 04-ORD-032 (recipient of public records questioned the degree of detail and "verifiability" of records produced in response to request; the Attorney General characterized the question as one that did not arise under the Act); 02-ORD-89 (recipient of public records questioned the quality and value of the information contained in those records; the Attorney General refused to consider this issue). Like before this office finds that issues concerning the value of information contained in public records produced for inspection are not justiciable in the context of an Open Records appeal and, therefore, declines to assign error on this basis. If Mr. Carter has evidence the Cabinet willfully concealed more accurate or current records, he may wish to consider the options available under KRS 61.991(2)(a); the record on appeal is devoid of such evidence.
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.
Taylor Carter
Tamela A. BiggsAssistant CounselOffice of Legal ServicesEducation CabinetCapital Plaza Tower, 3rd Floor500 Mero StreetFrankfort, KY 40601
Footnotes
Footnotes
1 Quoting the language of KRS 61.878(1)(a), Ms. Biggs explains that certain information has been redacted from the documents, including "the individuals' dates of birth, social security numbers, home addresses, home county codes, and home telephone numbers." Although the Cabinet fails to offer the requisite explanation of how this exception applies, in accordance with KRS 61.880(1), this office will not belabor this procedural issue since Mr. Carter does not challenge the redactions nor would such a claim be supported by governing precedent; 06-ORD-036, a copy of which is attached hereto and incorporated by reference, is controlling as to application of KRS 61.878(1)(a). See also 06-ORD-050.
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2 On this issue, the Attorney General has observed:
An open records request should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the request should not require "the specificity of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government."
02-ORD-89, p. 4, citing 95-ORD-49, p. 5 (citation omitted). In the final analysis, this office assumes "a modicum of good faith from both parties to an open records appeal: from the requester in formulating his request, and from the official custodian in providing the records which satisfy the request." Id., citing 96-ORD-223, p. 4 (citation omitted).
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3 KRS 61.872 establishes guidelines for providing access to public records under the Open Records Act. In relevant part, KRS 61.872 provides:
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
In sum, the Open Records Act contemplates access by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. Thus, a requester who both lives and works in the same county where the public records are located (such as Mr. Carter) may be required to inspect the records prior to receiving copies. A requester whose residence or principal place of business is outside the county where the public records are located, as is the case here, may demand that the agency provide him with copies of records, without inspecting those records, assuming that the requester precisely describes the records and the records are readily available within the agency. 02-ORD-26, p. 5; 97-ORD-16. See 02-ORD-26, p. 6, for discussion of the higher standard imposed upon requesters seeking to receive copies of records through the mail.
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4 As consistently emphasized 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. As a corollary to this proposition, the Attorney General has often noted that a public agency cannot afford a requester access to nonexistent records.
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5 "To require an unequivocal denial of a nonspecific request for records," this office has often stated, "is to impose a burden on the public agency which no custodian of records, or individual acting under his authority, can practically discharge." See, e.g., 96-ORD-101; 01-ORD-131.
In a recent opinion, the Kentucky Supreme Court analyzed the respective obligations of the parties in the event of an appeal arising from a denial based on the nonexistence of responsive records. As observed by the Court:
The Open Records Act is silent as to the procedure to be followed when a requester seeks to enforce the Act over a public agency's denial of the record's existence. The Act contemplates that an agency will deny an open records request when it believes that the requested records are exempt, but it does not envision a situation, as here, where the agency claims that the records do not exist. See KRS 61.880(1) ("An agency response denying ? inspection of any record shall include a statement of the specific exemption authorizing the withholding of the record ...."). Similarly, the Act's enforcement provisions assume that the parties will be litigating the viability of a claimed exemption over existing records, not the very existence of the records. See KRS 61.882(3) ("The court ? may view the records in controversy in camera before reaching a decision.").
. . .
The General Assembly has expressly declared the "basic policy" of the Open Records Act to be "that free and open examination of records is in the public interest ...."KRS 61.871. When faced with the present situation, the best way to uphold this policy is to ensure that the complaining party has an opportunity to disprove a public agency's denial of the existence of records. The allowance of an opportunity for such a hearing is also in accord with the Act's interrelation with the various statutes governing orderly maintenance and management of public records. KRS 61.8715. To hold otherwise could remove accountability from the open records process, allowing public agencies to avoid judicial review by denying a record's existence altogether rather than claiming a statutory exemption. Statutes must not be construed in a way that they become meaningless or ineffectual. Commonwealth v. Phon, 17 S.W.3d 106, 108 (Ky. 2000); Allen v. McClendon, 967 S.W.2d 1,3 (Ky. 1998). At the same time, the General Assembly has also evidenced a concern that public agencies not be unreasonably burdened and that essential functions not be disrupted by open records requests. KRS 61.872(6). The unfettered possibility of fishing expeditions for hoped-for but nonexistent records would place an undue burden on public agencies. In order to refute a complaining party's claims to a nonexistent record, the agency would essentially have to prove a negative, presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives. Therefore, we hold that before a complaining party is entitled to such a hearing, he or she must make a prima facie showing that such records do exist.
Bowling v. Lexington Fayette Urban County Government, Ky., 172 S.W.3d 333, 340, 341 (2005) (emphasis added).
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