Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Judicial Form Retirement System violated the Open Records Act in the disposition of the Prosecutors Advisory Council's December 28, 2006, request for records relating to the senior status judge program. Ms. Janet M. Graham submitted the request on behalf of the Council of which she is Director. For the reasons that follow, we find that although its initial responses to the Council's requests were deficient, JFRS ultimately satisfied the requirements of the Open Records Act by releasing all responsive records in its possession and affirmatively advising that no additional responsive records reside in its possession.
In the December 28 application, Ms. Graham requested access to seventeen categories of program records, explaining that the Counsel is responsible for preparing the budget for Kentucky's Unified Prosecutorial System and must consider the prosecutors' workload in discharging this duty. Because the assignment of a senior status judge to a judicial circuit increases the prosecutors' workload, Ms. Graham continued, the requested records are necessary for the performance of a legitimate budgetary function.
By letter dated January 3, 2007, JFRS Executive Director Donna S. Early responded to the Council's request, providing the Council with copies of records responsive to requests 2, 3, 8, 11, 12, 13, and 14, and partially responsive to request 1. With reference to the remainder of request 1, as well as requests 5, 6, 14, 16, and 17, JFRS asserted that it maintained only copies of the records sought and suggested that Ms. Graham direct the request to "the entity responsible for originating and generating these records," specifically, the Administrative Office of the Courts or, in the case of request 17, the State Board of Elections. JFRS denied possession of records responsive to requests 4, 7, 9, 10, and 15, identified as:
4. Records indicating which judicial districts will receive a senior status judge prior to the current sunset date of the senior status judge program;
7. Records indicating how senior status judges' workloads are calculated;
9. Records generated from 2000 to the present regarding changes or proposed changes to the sunset date of the senior status judge program; 1
10. Records of proposed legislation to be introduced in the 2007 General Assembly relating to the senior status judge program;
15. Records indicating the identity and number of judges who have applied for senior status judge and been rejected.
Following an exchange of letters in which Ms. Graham advised JFRS that nonexempt records in its custody that are responsive to her request must be disclosed regardless of whether the records are originals or copies, and regardless of whether JFRS is the official custodian or a casual possessor of the records, JFRS released records responsive to requests 14 and 17 on January 5, 2007, indicating that Chief Justice Joseph E. Lambert, Chairman of JFRS's Board of Trustees, had agreed to "entertain a request for the records referred to in items 5, 6, and 16."
Shortly thereafter, the Council initiated this appeal asserting that JFRS's January 5 response to its request was inconsistent with the requirements of the Open Records Act insofar as the request "was made to the Judicial Form Retirement System - not to the Chief Justice or the Administrative Office of the Courts[; therefore, t]he Judicial Form Retirement System should provide copies of responsive documents." In support, the Council cited 98-ORD-100 and 06-ORD-218.
In supplemental correspondence directed to this office following commencement of the Council's appeal, JFRS reasserted its objections to providing the requested records, but agreed to do so in the interest of avoiding "a lengthy and protracted lawsuit at taxpayer's expense." Declaring that it had "fully complied with the Open Records Request of December 28, 2006," JFRS provided us with a copy of its January 23, 2007, letter to Ms. Graham in which it provided information and records responsive to requests 5, 6, and 16.
On February 6, 2007, the Council notified the undersigned that although JFRS had indeed fulfilled its statutory obligations relative to requests 1, 2, 3, 5, 6, 8, 11, 12, 13, 14, 16, and 17, requests 4, 7, 9, 10, and 15 were "still outstanding." Consequently, this office requested additional information from JFRS under authority of KRS 61.880(2)(c) 2 and 40 KAR 1:030 Section 3 3 on February 6. We explained that because Ms. Graham had identified five requests that had not been honored, we could not treat the issues on appeal as moot, per 40 KAR 1:030 Section 6. 4 We asked that JFRS advise us, in writing, whether records responsive to requests 4, 7, 9, 10, and 15 exist, and, if so, to cite the exception(s) authorizing nondisclosure. Alternatively, we ask JFRS to describe the search method employed in attempting to locate responsive records if it was the JFRS's position that no responsive records exist.
By letter dated February 8, 2007, Ms. Early responded to our inquiry, noting that she advised the Council in her January 3 response to its December 28 request that records responsive to requests 4, 7, 9, 10, and 15 were "not in my [Ms. Early's] possession." She proceeded to again deny that JFRS "maintain[s] records responsive to requests 4, 7, 9, 10, and 15," explaining that she is records custodian for the agency, and that "[i]n that capacity, [she is] fully aware of the records and documents that are in this office," and reasserting that "none of the requested records are in this office." Having reviewed Ms. Early's responses to our inquiries, along with the underlying record on appeal, we find that although JFRS erred in directing the Council to the Administrative Office of the Courts and the Board of Elections in relation to "copies" of records in its custody which did not originate with JFRS, the agency subsequently discharged its obligations under the Open Records Act by releasing all responsive records in its custody, regardless of whether the records originated with JFRS or were transmitted to it as copies, affirmatively advising that no additional responsive records reside in its custody, and describing, albeit minimally, the nature of the search undertaken for the latter records.
As noted, JFRS originally declined the Council's requests 5, 6, 14, 16, and 17, and a portion of request 1, on the basis that it maintained only copies of the records sought, suggesting that she direct those requests to AOC and the Board of Elections. We concur with the Council in its view that this was not a proper response under the Open Records Act. In 98-ORD-100, this office rejected the argument that a public agency which prepares, owns, uses, possesses, or retains a public record is relieved of its clearly established duties under the Open Records Act simply because the record is in the custody of another agency from which it can more appropriately be obtained. There, the Lexington-Fayette Urban County Government asserted that it was the "casual possessor" of records in another agency's custody, and not the "official custodian, " and that it therefore could not honor a request for those records. On the basis of KRS 61.870(2) and a series of open records decisions, we held that:
there is no specific exception to the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from that other public agency.
OAG 91-21, p. 4 (holding that the City of Owensboro improperly denied requester access to records in its custody although those records were "the responsibility of the State and County"); OAG 90-71 (holding that the Kentucky Board of Pharmacy improperly refused to release salary records of its employees on the grounds that the records could more appropriately be obtained through the Department of Personnel); 96-ORD-7 (holding that the Department of Corrections improperly referred inmate to the institutional records office for a copy of his resident record card when it too had custody of the card); and 98-ORD-17 (holding that Jefferson County Sheriff's denial of request for audits of his office would be improper if his office maintained a copy of the audits in addition to copies of the audits in the custody of the Revenue Cabinet). The weight of recent authority indicates that the concept of casual possession, which has no statutory basis, has been all but discarded. Accord, 99-ORD-10; 00-ORD-229; 06-ORD-166; 06-ORD-218. JFRS's original position that it maintained only copies of the records identified in requests 5, 6, 14, 16, and 17, and a portion of request 1, and that those records should be obtained from other agencies, a position from which it retreated only after this appeal was filed, was therefore legally unsupportable.
Nor do we agree with JFRS that the Council's appeal should have been dismissed because JFRS "fully complied" with that request after the Council initiated the appeal by providing information and records responsive to requests 5, 6, and 16. Clearly, JFRS denied requests 4, 7, 9, 10, and 15 on the basis that the records sought were not in Ms. Early's possession. It is, of course, the function of this office under KRS 61.880(2) to review public agency denial of an open records request, and the denial of a request may be predicated on the agency's inability to produce the record. On this issue, the Attorney General has frequently observed:
[A]n agency's inability to produce records due to their 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. [Citations omitted.]
02-ORD-144 p. 3, cited in 02-ORD-163; 03-ORD-220; 04-ORD-228; 05-ORD-190; 06-ORD-114. Ms. Early's initial response to the Council's requests states that records responsive to requests 4, 7, 9, 10, and 15 "are not in my possession." By this, we assume Ms. Early meant the requested records were not in her possession as custodian of JFRS' records rather than in her personal custody. Any doubt relative to this issue was resolved when, in response to this office's KRS 61.880(2)(c) inquiries, Ms. Early advised that JFRS "maintain[s] no records responsive to requests 4, 7, 9, 10, and 15." Having done so, Ms. Early discharged, in part, JFRS's statutory duty.
It remained, however, for JFRS to document what search methods were employed to locate records responsive to requests 4, 7, 9, 10, and 15. In 95-ORD-96, this office examined the scope of a public agency's duties in managing its records, and conducting a search for a record in responding to an open records request. 5 There, the requester asked to inspect a record in a named individual's files relating to a specific event which the requester described in detail. After reviewing the files, the public agency denied the request explaining that no responsive record could be located. We declined the requester's invitation to declare the agency's failure to produce the record a violation of the Open Records Act for reasons not here relevant. Nevertheless, at page 3 through 6, we analyzed the obligations imposed on public agencies by operation of KRS 61.8715, the statute that recognizes an essential relationship between the intent of the Open Records Act and the intent of the laws pertaining to records management (KRS 171.410 to 171.740), and declares that "to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes." KRS 61.8715.
On the issue of a public agency's inability to produce a record owing to its loss, destruction, or nonexistence, this office observed:
The Attorney General has long recognized that a public agency cannot afford a requester access to records which do not exist or have been destroyed. See, e.g., OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203. . . . However, since July 15, 1994, when [KRS 61.8715] took effect, we have applied a higher standard of review relative to denials based on the nonexistence, or . . . the destruction, of the 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. . . . The loss or destruction of a public record creates a presumption of records mismanagement, but this presumption is rebuttable. . . .
95-ORD-96, p. 5. In 95-ORD-96, the public agency's failure to provide any explanation for the loss of the requested record led us to conclude that it had not adequately managed its records.
In the appeal now before us, JFRS's records custodian, Ms. Early, relies exclusively on her knowledge of the agency's recordskeeping system to deny the existence of records responsive to requests 4, 7, 9, 10, and 15. 6 Records responsive to these requests do not appear on JFRS' records retention schedule and no specific proof exists that such records should reside in its custody. "In assessing the adequacy of an agency's search, we 'need not go further to test the expertise of the agency, or to question its veracity, when nothing appears to raise the issue of good faith." 95-ORD-96, p. 7, citing Weissman v. Central Intelligence Agency, 565 F.2d 692,697 (D.C. Cir. 1977). Based on the number of records produced in response to the Council's request, it appears that JFRS "made a good faith effort to conduct a search using methods that [could] reasonably be expected to produce the records requested." 95-ORD-96, p. 7. Although that search did not yield all of the records the Council requested, our analysis turns not on whether the fruits of the agency's search satisfied that request in its entirety, but whether the agency made a good faith effort to conduct a search, and could therefore say, unequivocally, that no additional responsive records exist. In the absence of evidence calling into question JFRS's good faith in denying the existence of records responsive to requests 4, 7, 9, 10, and 15, we conclude that the Open Records Act requires nothing more.
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.
Janet M. Graham, DirectorProsecutors Advisory Council1024 Capital Center DriveFrankfort, KY 40601
Donna Stockton-EarlyExecutive DirectorKentucky Judicial Form Retirement SystemWhitaker Bank Building, Suite 302305 Ann StreetFrankfort, KY 40601
J. T. Gilbert212 N. 2nd StreetP. O. Box 1178Richmond, KY 40476
Footnotes
Footnotes
1 In subsequent correspondence, JFRS acknowledged possession of a copy of KRS 21.580, reflecting the 2002 change to the sunset date of the Senior Status Program for Special Judges. It is reasonable to assume that JFRS did not disclose this record to the Council based on its belief that the Council could access the statute by reviewing the statute online or in her office's library.
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2 KRS 61.880(2) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
3 40 KAR 1:030 Section 3 provides:
Additional Documentation. KRS 61.846(2) and 61.880(2) authorizes the Attorney General to request additional documentation from the agency against which a complaint is made. If documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered.
4 40 KAR 1:030 Section 6 provides:
Moot Complaints. If the 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.
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5 In 95-ORD-96, this office established a standard by which to measure theadequacy of an agency's search for public records. At page 7, we stated.
In our view, the Open Records Act does not require an agency to conduct "an exhaustive exhumation of records," Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight." In re Agency Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D. N.Y. 1983). It is, however, incumbent on an agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, at 775. Thus, the agency must expend reasonable efforts to identify and locate the requested records. And, if the documents do exist, and the public agency cannot locate them, the agency's "good faith [sh]ould not be impugned unless there was some reason to believe that the supposed documents could be located without an unreasonably burdensome search." Goland v. Central Intelligence Agency, 607 F.2d 339, 353 (D.C. Cir. 1979). In assessing the adequacy of an agency search, we "need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).
95-ORD-96, p. 7 (emphasis added).
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6 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 thenonexistence of responsive records. The Court observed:
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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