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 Kentucky Transportation Cabinet violated the Kentucky Open Records Act in the disposition of Alice K. Wasielewski's request for various records concerning the "Choose Life" specialty license plate. Although the Cabinet initially failed to either produce any existing nonexempt records which are responsive to Ms. Wasielewski's request within three business days, as contemplated by KRS 61.880(1), or give a detailed explanation of the cause for delay and the date certain on which the records would be available, in accordance with KRS 61.872(5), the Cabinet ultimately provided Mr. Wasielewski with a copy of any existing records which are responsive to her request; nothing more is required. In sum, the initial response of the Cabinet was procedurally deficient; however, the Cabinet cannot produce for inspection or copying nonexistent records or those which it does not possess. Likewise, this office is not empowered to resolve disputes concerning discrepancies between the records being sought and those provided.
By letter directed to "Office of General Counsel" on April 5, 2007, Alice K. Wasielewski requested "the opportunity to examine and copy all documents" relating to the following "that are in the possession of the Cabinet, its agents and assigns":
1) All documents which reflect the decision to permit the specialty license plate "Choose Life" including but not limited to administrative awards, orders, memorandum[s], [and] recommendation[s] to other branches of state government.
2) The name, address and phone number of the entity or entities which applied for and were granted the right to sponsor said specialty license plate, "Choose Life."
3) All documents which show that said entity or entities hold the status of 501 (c)(3) or other nonprofit status as required by law.
4) All annual reports filed by said entities as required by law since the issuance of the specialty license plate, "Choose Life." 1
On April 23, 2007, Sally Wasielewski, acting on behalf of her client, Alice Wasielewski, directed a letter to Willie Payton, Assistant Director, Motor Vehicle Licensing, advising that her client had not received a response of any kind from the Cabinet until earlier that day, at which point Mr. Payton called her client, "in spite of the fact that [she] personally left a voice mail for Ann Stan[sel] on April 17, expressing the hope" that the Cabinet would comply "without litigation in Franklin Circuit Court." When Ms. Wasielewski called Mr. Payton in order to clarify the request, she "was put on hold and the phone rang until it finally shut off." Accordingly, she concluded they were "dealing with bad faith since there appear[ed] to be a total disregard of the clear statutory language." Having received no written response from the Cabinet, Ms. Wasielewski filed this appeal by letter dated April 26, 2007. According to Ms. Wasielewski, her client received a telephone call from Mr. Payton, as indicated, on April 23, 2007, but he said "the only information he had was the 900 applications of the persons requesting the special license plate" from which personal information would have to be redacted before those records could be furnished; however, that information was not requested. When she was disconnected, Ms. Wasielewski faxed a copy of the request to Mr. Payton, "copied by mail to the Office of General Counsel." As of April 26, 2007, neither she nor her client had received a response.
Upon receiving notification of Ms. Wasielewski's appeal from this office, J. Todd Shipp, Assistant General Counsel, responded on behalf of the Cabinet. Enclosed with his response are "the documents that it possesses regarding the 'Choose Life' license plate. This is the list of Kentucky citizens that were part of the initial support for the issuance of this plate. " 2 Citing "privacy issues," 3 Mr. Shipp explains that "all home addresses have been removed. After a complete and diligent search for approximately one (1) month," the Cabinet states that "no other documents exist within this building." Addressing each request in turn, the Cabinet responds as follows:
The Attorney General has ruled in several decisions (96-ORD-171, 96-ORD-91, 95-ORD-108, 95-ORD-68, 94-ORD-108, 94-ORD-12, 93-ORD-116) that it is incumbent on the requester to identify records sought with reasonable specificity, and the public agency is not obligated to conduct a search for such documents. Generic requests for "any and all documents and "all documents or records" have been held to be overbroad and non-compliant with the requirements of the Open Records Act. 4
A review of Ms. Wasielewski's request clearly shows that it is [overbroad] in its scope, specifically numbers one (1) and 3 (3). Despite this, KYTC has made a diligent effort to meet her request. First, the document attached hereto and [sent] to Ms. Wasielewski required computer activity and programming to develop the list. This document shows the nine hundred (900) required parties who wanted the plate pursuant to KRS 186.162.
As to the other requests, after a thorough and diligent search for other documents, KYTC has been unable to locate anything further. The steps KYTC has taken to locate them are a thorough search of the Commissioner of Vehicle Regulation's files, as well as the Director and Assistant Director of Motor Vehicle Licensing's records. After this, KYTC then reviewed material in the Office of Legislative Services for pertinent documents and nothing was located. KYTC further took the extraordinary step and contacted a former employee of KYTC (presently with the Public Service Commission) to determine if he maintained any records. All of this activity in our efforts to locate identifiable and pertinent records has been fruitless. 5
In conclusion, Mr. Shipp acknowledges that "KYTC is unfortunately beyond the three (3) day response requirement." However, the Cabinet recognizes "that this is an essential part of" responding to requests and the delay was not intentional or negligent. As noted, the Cabinet "used this time to generate a computer listing for Ms. Wasielewski, and went to the extraordinary step in reaching out to former employees in an effort to locate the documents she seeks. Unfortunately, KYTC cannot locate the material at the present time." In a supplemental response dated May 14, 2007, Ann Stansel, Office of Legal Services, advised this office that additional responsive documents had been located, copies of which she enclosed; copies of the records were forwarded to Ms. Wasielewski and her client as well. 6
As a public agency, the Cabinet must adhere to procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) contains the procedural guidelines which a public agency must comply with in responding to requests. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision.
In applying this provision, the Attorney General has consistently observed:
"The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1) . Contrary to [the Records Management Section's] apparent belief, the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
(Emphasis added). Additionally, we note that in OAG 92-117 this office made abundantly clear that the Act "normally requires the agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request." OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented." OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 82-300, p. 3; see also 93-ORD-134 and authorities cited therein. Pursuant to KRS 61.872(5), "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for the delay, and a written commitment to release the records on the earliest date certain. " 01-ORD-38, p. 5.
01-ORD-140, pp. 3-4 (emphasis added). Noticeably absent from the response of the Cabinet are both of these mandatory elements. To this extent, the Cabinet violated KRS 61.872(5). See 01-ORD-38 ("KRS 61.872(5) envisions designation of the place, time, and earliest date certain, not a projected or speculative date, when the records will be available for inspection" ). Because the Cabinet has conceded this procedural error, this office will not belabor the point any further; any error was apparently committed in good faith.
Turning to the substantive issues presented, this office first concludes that any issues related to records already provided to Ms. Wasielewski are moot per 40 KAR 1:030, Section 6, which provides: "Moot complaints. 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 held that when access to 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. Accordingly, this office must decline to issue a decision concerning any of the records to which Ms. Wasielewski has already been provided access. In light of this determination, the remaining question is whether the Cabinet has otherwise complied with provisions of the Open Records Act in affirmatively indicating that additional records do not exist following a thorough search.
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. 7 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 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 multiple 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 veracity of the agency. 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. Where some, rather than all, of the records requested are disclosed, this office has generally declined to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 4.
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.
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). Under circumstances like those presented, further inquiry is not warranted in the absence of contrary evidence. Because the Cabinet made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," the Cabinet cannot be said to have violated the Act in this regard. 05-ORD-109, p. 3. Although the search may not have yielded all of the records believed to exist, our analysis turns not on whether the fruits of the agency's search meet the expectations of the requester, but whether the agency made a good faith effort to conduct such a search, and then affirmatively indicated, "as unequivocally as the nonspecificity of the requests permit," that additional records do not exist. 06-ORD-070, p. 10.
To the extent Ms. Wasielewski 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). As in the cited decisions, 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.
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 Although the Cabinet does not specify as required by KRS 61.872(4), annual reports for businesses are presumably maintained by the Office of the Secretary of State.
2 Also included with our copy of the Cabinet's response is a copy of a letter dated May 8, 2007, from the Internal Revenue Service to the Family Trust Foundation of Kentucky, Inc. confirming that in November 1989 the IRS "issued a determination letter that recognized your organization as exempt from federal income tax" and the organization "is currently exempt under section 501(c)(3) of the Internal Revenue Code."
3 Although such a response does not contain the specificity envisioned by KRS 61.880(1), the Cabinet is presumably relying upon KRS 61.878(1)(a). With regard to application of KRS 61.878(1)(a), the analysis contained in 06-ORD-036 is controlling; home addresses and telephone numbers clearly fall within the parameters of this exception as consistently recognized by the courts and this office.
4 In making this assertion, the Cabinet is correct insofar as the Attorney General has criticized "open ended any-and-all-records-that-relate-type of requests" in 96-ORD-101 and 99-ORD-14, as well as the "broad discovery request[s]" at issue in 00-ORD-79, among other decisions; however, in 00-ORD-180, the requester sought copies of "any/all complaints" filed against the Kentucky Department of Corrections or any of its divisions and the Kentucky Parole Board during the preceding two years that involved "the issue of drug testing by Kentucky probation and/or parole officers." In our view, this request was "specific and narrow enough" for the Department to identify and locate the records. Id., p. 6. Likewise, a request to inspect only those records "relating to an investigation of the Thomson-Hood Veterans Center regarding the circumstances of an injury to Joseph Adams on June 11, 2002," was narrow enough to satisfy this standard. 04-ORD-028, p. 8. Such is arguably the case here given that Ms. Wasielewski's client not only indicated a willingness to inspect, she requested to "examine and copy" records which are responsive to her written request as opposed to asking that copies be mailed in accordance with KRS 61.872(3)(b). See 06-ORD-155, pp. 7-11, for the analysis employed by this office in determining whether a request "precisely describes" the records being sought and those records are "readily available" within the agency. As in that decision, the request in question is broad and fails to "precisely describe" the records at issue; however, the records are necessarily of an "identified, limited class," the only standard which must be met when the requester is willing to inspect prior to receiving copies. Id. See 06-ORD-028, pp. 9-11, for a discussion concerning the degree of precision required in drafting a request; 04-ORD-028 ("As a precondition to inspection, a requesting party must identify with 'reasonable particularity' those documents he wishes to review. . . Where the records sought are of an identified, limited class, the requester satisfies this condition.")(citations omitted). Although the question is a close one, the request is framed with "sufficient clarity" to enable the records custodian to identify and retrieve those records which are potentially responsive. Upon satisfaction of this precondition to inspection, the burden of proof shifted to the Cabinet; that burden has been met in our view. 04-ORD-028, p. 9; 06-ORD-155. In any event, the Cabinet proceeded to conduct a through search, to its credit, and has affirmatively indicated that additional records do not exist; nothing more is required.
5 Whether the methods employed by a public agency constitute an adequate search turns on the standard articulated in 95-ORD-96:
[T]he 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 Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D.N.Y. 1983). It is, however, incumbent on the agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, supra 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).
Id., p. 7. A review of the record confirms that the Cabinet conducted a search that could reasonably be expected to produce additional records if any such records existed.
6 More specifically, the records can be described as a copy of a letter from Roy W. Mundy II, Commissioner, Department of Vehicle Regulation to Kent Osterander, The Family Foundation of Kentucky, dated December 20, 2006, in which Mr. Mundy informs Ms. Osterander of an amendment to KRS 186.164(12), a copy of the cover page from the 4th Quarter 2006 edition of a publication entitled "County Clerk Connection" announcing the availability of the "Choose Life" license plates and outlining the history, and a copy of the same article with a handwritten memo from Mr. Mundy to "ASA Swan" dated December 18, 2006, suggesting that he might wish to "pass this along to Jack Westwood [the Senator identified in said article as being responsible for the authorizing legislation]."
7 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.