Opinion
Opinion By: Gregory D. Stumbo, Office of Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Department of Fish & Wildlife Resources (KDFWR) violated the Open Records Act in its disposition of Edward Davis' requests, dated June 12, 2007, and June 19, 2007. Because these matters have been presented to the Attorney General in two separate appeals but present identical questions of law, the two appeals are consolidated for purposes of adjudication under KRS 61.880(2) . For the reasons that follow, we conclude that the actions of KDFWR in response to Mr. Davis' requests did not violate the Open Records Act.
On June 12, 2007, Mr. Davis submitted three separate requests to the KDFWD, asking for copies of:
(1) Hatchery organizational charts from April '92 - March '04;
Records pertaining to disciplinary action including (but not limited to): reprimands, suspensions and dismissal, signed harassment policy and workplace violence policy forms and all evaluations of Mike Larimore;
(2) Suspensions and reprimands on work record and signed harassment policy and workplace violence policy forms and all evaluations of Steve Marple.
(3) Any records including correspondence with Benji Kinman, Bob Bates and Ted Crowell, including but not limited to KEAP file.
By letter dated June 18, 2007, Morgain M. Sprague, General Counsel, KDWFR, responded to Mr. Davis' requests, advising him that no organizational charts exist for the Pfeiffer Fish Hatchery for the period of April 1992 through March 2004 and provided the requested records relating to Mike Larimore and Steve Marple. Ms. Sprague further advised that KDFWR does not possess KEAP files; that those files are maintained by KEAP; and that those files are confidential to which no employer agency is privy. Finally, she advised that he had submitted his request on a form requesting records, pursuant to KRS 18A.020, which referred to records maintained by the Personnel Cabinet, and informed him he should submit his request to the Personnel Cabinet.
On June 19, 2007, Mr. Davis submitted additional requests to the KDFWD and Steve Marple, again asking for a copy of his KEAP file.
After receipt of notification of the appeal, Ms. Sprague provided this office with a response to the issues raised on appeal. In her response, she reiterated that KDFWR neither possesses nor maintains KEAP records, which are confidential and unavailable to either the employer or the Personnel Cabinet. Addressing Mr. Davis' request for documents in his personnel file maintained by the Personnel Cabinet under KRS 18A.020, Ms. Sprague stated that Mr. Davis had been advised that to obtain his records from the Personnel Cabinet, he should address his request to the Cabinet. Finally, she advised that Mr. Davis had been provided with a full copy of his personnel file.
First, addressing Mr. Davis' request for Hatchery organizational charts from April 1992 through March 2004, KDFWR advised him that no such charts exist. Obviously, a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The KDFWR discharged its duty under the Open Records Act by affirmatively so advising. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
The responses of the KDFWR indicate that Mr. Davis was provided with copies of the requested records relating to Mike Larimore and Steve Marple. 40 KAR 1:030, Section 6 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." Accordingly, since Mr. Davis was been provided with copies of records responsive to this portion of his request, the issue as to access to these records is moot and no decision will be rendered in this regard. 06-ORD-253.
With regard to Mr. Davis' request for the personnel record maintained by the Personnel Cabinet and his KEAP records, KDFWR advised that it did not have those records, and he must request them from the Personnel Cabinet. The open records request should be submitted to the official custodian of the agency that has or is most likely to have the record being sought.
KRS 61.872(4) provides:
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 shall furnish the name and location of the official custodian of the agency's public records.
The KDFWR affirmatively advised Mr. Davis that it did not have records responsive to his request and notified him that to get a copy of his personnel record maintained by the Personnel Cabinet and his KEAP records, he should submit his request to the Cabinet. Thus, we conclude that the KDFWR's response was in substantial compliance with KRS 61.872(4) and did not constitute a violation of the Open Records Act.
In a reply to this office and to Ms. Sprague's response, Mr. Davis asserts that records related to his KEAP file exist within the agency. KDFWR has indicated that other records responsive to his request do not exist, further advising that he had been provided with a full copy of his personnel file. Regarding disagreements of this nature between a requester and a public agency, this office, in OAG 89-81, stated:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
As noted, it is not within our statutory charter to investigate in order to locate documents that the requesting party maintains exist, but which the agency states do not exist, or to otherwise resolve a dispute arising from such a disparity. The record on appeal does not contain sufficient information for this office to resolve the factual dispute between the parties regarding the disparity between records which have been provided and those sought but not provided. Accordingly, the parties should continue to consult and mutually cooperate to resolve any differences or misunderstandings related to the requested records.
As a public agency employee, Mr. Davis has a greater right of access to records that relate to him than the public generally. KRS 61.878(3) provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
In analyzing this provision, the Attorney General has recognized:
. . . KRS 61.878(3) overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) through (j), 1 with the exception of those noted in the concluding sentence of the provision, when an open records request is submitted by a public agency employee. The final sentence of the provision authorizes an agency to withhold examinations and "documents relating to ongoing criminal or administrative investigations by [the] agency" even when they are requested by the public agency employee and relate to him. Thus, as a rule of general application, KRS 61.878(3) mandates release of otherwise exempt records to a public agency employee. However, where the employee is under investigation and the documents relate to that investigation, the request can properly be denied. See, e.g., 93-ORD-37; 93-ORD-74.
In contrast, this office has recognized that a public agency employee is entitled to review records relating to administrative actions which he or she initiated. Thus, in 93-ORD-19, we held that a public agency employee could inspect handwritten notes generated by the agency's affirmative action officer in the course of investigating a formal complaint filed by the employee, even though those notes were otherwise exempt per KRS 61.878(1)(i). We reaffirmed that decision in 93-ORD-24, holding that the agency improperly withheld handwritten notes prepared by an agency officer during an investigation of a complaint initiated by the requester to whom the notes related.
95-ORD-97, p. 4.
By virtue of the rights granted by KRS 61.878(3) , Mr. Davis is entitled "to inspect and to copy any record including preliminary and other supporting documentation that relates to [him]." Thus, preliminary drafts, notes and correspondence with private individuals, whether in electronic or printed form, which relates to Mr. Davis, even if not contained in his personnel file, which would be otherwise shielded from disclosure by KRS 61.878(1)(i) as to the public generally, must be made available to Mr. Davis if it, in fact, "relates" to him. Accord, 94-ORD-9; 95-ORD-97; 96-ORD-8; 98-ORD-34; 01-ORD-126; 03-ORD-118' 06-ORD-014.
Moreover, in 05-ORD-181, at pages 6 and 7, this office discussed the term "relates" found in KRS 61.878(3), explaining:
The term "relate" is defined as having "connection, relation, or reference," The American Heritage College Dictionary, 1173 (4th ed.), and does not always require specific references in the form of a name. To the extent that the contents of the letter relate to the Sheriff, his office, and his employees, he and his employees are entitled to inspect and obtain a copy of it. The mandatory stricture found at KRS 61.878(3) overrides any otherwise applicable exception, including KRS 61.878(1)(j), to compel disclosure of the letter and supporting documentation.
Based on the foregoing, we find that if records exist that relate to Mr. Davis, but were not in his personnel file, they should be made available for his inspection, unless exempt under an applicable exception. If such records do not exist, the KDFWR should affirmatively advise Mr. Davis of that fact.
A party aggrieved by this decision may appeal it by initiating an 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 KRS 61.878(1)(k) and (l) authorize nondisclosure of records made confidential by federal or state law and are not overridden by KRS 61.878(3).