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 Education Professional Standards Board (EPSB) violated the Open Records Act in the disposition of John E. Hicks' series of requests for a copy of an Emergency Certificate for Teaching Learning and Behavior issued to Justin Amburgey to teach during the 02-03 school year for Knott County School System.
In his letter of appeal, Mr. Hicks indicated, that in prior responses to his open records requests, the EPSB had provided him documentation showing that Mr. Amburgey had been issued an emergency certificate to teach learning behavior disorders in the Knott County School system for the 2002-2003 school year and subsequently the EPSB advised him that Mr. Amburgey had not been issued such a emergency certificate.
After receipt of notification of the appeal, Alicia A. Sneed, Director of Legal Services, EPSB, provided this office with a response to the issues raised in the appeal. In her response, Ms. Sneed, in relevant part advised:
During the 2002-2003 school year, Floyd County Public Schools initially requested an emergency certificate for Justin Dean Amburgey to teach special education. Mr. Hicks, with his complaint, supplied the Floyd County Board minutes which show that Justin Dean Amburgey was hired effective August 6, 2002 and then resigned his position effective August 26, 2002.
On October 17, 2002, the EPSB's Division of Certification received an Application for Full-time Emergency Certification from Knott County Public Schools on behalf of Justin Amburgey to teach Health. See Exhibit 1. Toni Lewis, an EPSB Certification Consultant, sent an email to Floyd County requesting information regarding whether Amburgey was still employed there so she would be able to process the Knott County application. See Exhibit 2. Mary E. Montgomery of Floyd County Public Schools confirmed via email that Amburgey had been released from the school district for a job in another district. See id. On October 18, an Emergency Teaching Certificate to teach Health in Knott County was issued to Justin Amburgey. See Exhibit 3.
? When Mr. Hicks made his open records request on October 4, 2005 for all emergency certificates issued for Knott County Public Schools, a data set was collected from the Division of Certification's database to answer Mr. Hicks' query. At that time, Justin Amburgey's emergency certification in Knott County was listed in the database as "Emergency Certificate for Teaching Learning and Behavior Disorders, Grades K-12" effective September 2002. This was obviously incorrect as Knott County had requested and Amburgey was issued an emergency certificate to teach Health on October 18, 2002. See Exhibit 3. Amburgey had been issued an Emergency Teaching Certificate for Teaching Learning and Behavior Disorders in September of 2002, but it had been for Floyd County. See Exhibit 4. Evidently, when processing the Knott County application, the certification specialist had simply changed the Floyd County certificate that was issued in September 2002 to a Knott County certificate since an individual can only hold one emergency certificate per year, but did not change the area of certification.
In August of 2006, when Mr. Hicks brought this inconsistency to the agency's attention through his third open records request related to this matter, the Director of Certification, Michael C. Carr, determined that the problem was most likely caused by human error, as can be expected from time to time, since the specialists process approximately 20,000 applications a year. On August 21, 2006, Carr corrected the entry error and made the following notation in the certification database "Emer cert for LBD in Knott Co. was removed as it was issued in error. Was requested and issued by Floyd County but resigned there soon after issuance, moving to Knott County in Health." Had Mr. Hicks not made his series of open records requests, then the error probably would not have been found nor corrected.
Ms. Sneed concluded her response stating that the EPSB had provided information to Mr. Hicks that was in error, specifically that Justin Amburgey had been issued a Knott County Emergency Teaching Certificate for teaching Learning and Behavior Disorders, but there was no intent to deceive him or deny him access to records. In summary, Ms. Sneed asserted that the EPSB could not provide a record that did not exist.
We find that the EPSB discharged its statutory duty under the Open Records Act by notifying Mr. Hicks that no Knott County Emergency Teaching Certificate for teaching Learning and Behavior Disorders in 2002-2003 existed and offered an adequate explanation why. On this issue, the Attorney General has frequently observed:
[A] public agency cannot furnish access to records which do not exist. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17. We have also recognized that it is not our duty to investigate in order to locate documents which do not exist or have disappeared. OAG 86-35. Thus, at page 5 of OAG 86-35 we observed, "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."
In 1994 the Open Records Act was amended. The Act now 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.
Since these amendments took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based on the nonexistence of the requested records. In order to satisfy its statutory burden of proof, an agency must, at a minimum, offer some explanation for the nonexistence of the records.
97-ORD-116, p. 1, 2.
In the instant appeal, the EPSB, in its supplemental response provided this office, explained a data set from the Division of Certification's database, as a result of human error, erroneously entered that Mr. Amburgey had an emergency teaching certificate in the Knott County Schools to teach Learning & Behavior Disorders when, in fact, his emergency certificate was to teach Health. EPSB further explained that a person may only hold one emergency certificate at a time in one school district at a time. With its response, the EPSB also provided the September 2002 Emergency Teaching Certificate, issued to Mr. Amburgey for teaching Learning & Behavior Disorders in Floyd County and a copy of the October 18, 2002 Emergency Teaching Certificate issued to Mr. Amburgey for teaching Health in the Knott County Schools. As noted above, the Floyd County Public Schools confirmed to EPSB via email that Amburgey had been released from the Floyd school district job.
EPSB offers a plausible explanation for the nonexistence of the requested record. Although there may be occasions when, under the mandate of KRS 61.8715, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants intentional inquiry by this office or the Department for Libraries and Archives. The records access issues raised in this appeal are factual, and not legal, in nature. We therefore affirm the EPSB's denial of Mr. Hicks' request on the basis of the nonexistence of the record requested.
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.