Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal 1 is whether the Kentucky Personnel Cabinet violated the Kentucky Open Records Act in the disposition of Kurt Lowe's request for various public records concerning the hiring of named employees by the Kentucky Horse Racing Authority. Although this office cannot resolve the factual issue concerning delivery and receipt of Mr. Lowe's original request nor is the Attorney General empowered to resolve "non-open records related" issues in resolving appeals filed under KRS 61.880(2)(a), the Cabinet ultimately indicated to Mr. Lowe in a written response that records containing the information requested are not in the custody or control of the Cabinet and complied with KRS 61.872(4) in providing him with detailed contact information for the custodial agencies; nothing more is required. As long recognized by this office, a public agency cannot produce for inspection or copying nonexistent records or those which it does not possess nor is a public agency required to "prove a negative;" 07-ORD-188 is controlling on this issue.
By letter directed to Keyana M. Best on June 27, 2007, Mr. Lowe requested the following:
1) The record of the temporary, staffing or otherwise [sic] agency,[] that was procured and provided [] staff members[] Greg Berry and Angela Trosclair to [sic] the Kentucky Horse Racing Authority.
2) The itemized detailed billing statement(s), for 2005, 2006 & 2007, of the staffing services/work performed by Greg Berry & Angela Trosclair [] to the KHRA.
3) The state record(s) of the procurement process that was used[] to locate and retain the services of the aforementioned employees, through a temporary, staffing or otherwise [sic] agency, and supplied to the KHRA (re; [sic] bids, request for proposals, open bidding, closed bidding, sole source, lowest responsive responsible bidder, invitation for bids (IFB), any solicitation for bids or contracting services or products[, etc.])
4) The Kentucky state record(s) that designates the state contracting or state procurement guideline policy, that would have and should have been used in procuring or selection process for the aforementioned employees, by a staffing, temporary or otherwise [sic] agency and supplied to the KHRA.
On July 25, 2007, Mr. Lowe directed a letter to Ms. Best, advising that his previous two requests had been "stapled together." Acknowledging receipt of "the transfer order for KHRA employee Trudy Koenig," Mr. Lowe noted that "the second June 27, 2007 request has not been fulfilled as of today's date." A duplicate of the second request was attached to Mr. Lowe's letter.
Upon receiving notification of Mr. Lowe's appeal from this office, Thomas B. Stephens, Executive Director, Office of Legal Services, responded on behalf of the Cabinet. To begin, Mr. Stephens observes that Mr. Lowe has "filed five (5) Open Record Requests with the Personnel Cabinet in rapid succession. These requests were received by the Personnel Cabinet on 6/607, 6/607, 6/20/07, 6/29/07 and 7/30/07." Judging by the documents attached, Mr. Stephens assumes that Mr. Lowe's appeal relates to his request which the Cabinet received on June 29, 2007, as do we. According to Mr. Stephens, the Cabinet has addressed the remaining requests "and all proper information was provided."
Acknowledging that Mr. Lowe's second request of June 27, 2007, was not addressed by the Cabinet, as evidenced by "Cabinet records," Mr. Stephens asserts that "this was an honest, good-faith mistake, as the Cabinet has endeavored to provide all information addressed in the open records requests filed by Mr. Lowe prior to and since the request at issue." Apparently, the Cabinet "first received notification of the second request dated June 27, 2007, when Mr. Lowe sent correspondence dated July 25, 2007 addressing his previous requests." In Mr. Stephens' view, the omission was "due to apparent oversight." Mr. Lowe's letter dated July 25, 2007, referencing the status of the second request "was inadvertently filed with another request that the Cabinet thought was fulfilled." Given the circumstances and "in light of repeated efforts by the Cabinet to provide Mr. Lowe information," Mr. Stephens argues that the actions of the Cabinet indicate "a misunderstanding" as opposed to "an attempt to subvert the intent of the Open Records Act. " 2
In addressing Mr. Lowe's claim that fraudulent activity is occurring at the Environmental and Public Protection Cabinet as well as the Personnel Cabinet, Mr. Stephens notes that Mr. Lowe's "apparent basis for this assertion is that his open records requests have been ignored." According to Mr. Stephens, "this is simply not the case" as evidenced "by the responses and supplying of information to all other requests by Mr. Lowe." To the contrary, the Cabinet "made an honest mistake in overlooking one request filed by Mr. Lowe, and will supply the response to same quickly and efficiently." 3 In addition to being "erroneous and inappropriate," these allegations are not appropriately raised in the context of an Open Records Appeal. Citing 03-ORD-119 and 99-ORD-121, Mr. Stephens correctly notes that such issues are beyond our scope of review. 4
As a threshold matter, the somewhat contentious nature of the relationship between the parties does not have any bearing on the outcome of this appeal. In rendering a decision under the Open Records Act:
. . . the Attorney General is not concerned with "heroes and villains." Our review is limited to the legal and factual issues with which we are presented. Our decisions reflect a reasoned and objective resolution of these issues. It is our statutory duty to enforce the rights and obligations of the parties in an open records dispute, not to malign or praise those parties. In the final analysis, "we assume 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." 93-ORD-15, p. 6.
We urge the parties to bear this observation in mind in future open records exchanges.
If sufficient evidence exists that the [agency] willfully concealed a public record, . . . that evidence should be taken to the appropriate prosecutorial authorities. KRS 61.991(2)(a) establishes penalties for public officials who willfully conceal or destroy public records with the intent to violate the provisions of the Open Records Act. The Attorney General is not, however, authorized to render a decision on this question[.]
96-ORD-185, pp, 4-5. See also 05-ORD-099; 93-ORD-15. Simply stated, "this office is not empowered to resolve a 'swearing contest' between the parties." 98-ORD-146, p. 6. As correctly indicated by Mr. Stephens, the role of the Attorney General in adjudicating an Open Records dispute, as often recognized by this office, is narrowly defined by KRS 61.880(2)(a); the Attorney General is not authorized to deviate from that statutory mandate. 5 That being said, the record is devoid of evidence to suggest bad faith or fraud on the part of the Cabinet.
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; 01-ORD-36; 99-ORD-198; 91-ORD-17; 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. 6 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. 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." 01-ORD-36, p. 2; 04-ORD-205; 94-ORD-140. To reiterate, our scope of review in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(1). However, the analysis does not end there.
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; however, KRS 61.8715 presumes the records have been "prepared, owned, used, in the possession of or retained by a public agency" in accordance with KRS 61.870(2). In 07-ORD-188, a copy of which is attached hereto and incorporated by reference, this office conclusively resolved the dilemma presented under the rule announced in Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005). Because a public agency would "essentially have to prove a negative" in order to refute a complaining party's claim to nonexistent records, the Court held "that before a complaining party is entitled to such a hearing [before the Court in order to disprove the agency's denial based on the nonexistence of the records], he or she must make a prima facie showing that such records do exist." See 07-ORD-188.
While the Cabinet relies upon lack of possession as opposed to nonexistence of the records at issue, the same logic applies on the facts presented in our view; Mr. Lowe has not made any showing to refute the Cabinet's assertion that such records are not within its custody or control, focusing instead on procedural irregularities and issues which are not justiciable in this forum. Pursuant to KRS 61.872(4): "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. " Here, the Cabinet has affirmatively indicated that it does not possess or maintain the records being sought and provided Mr. Lowe with contact information as required by this provision. In the absence of the requisite prima facie showing, this office must affirm the Cabinet's disposition of Mr. Lowe's request. The Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880[(2)(a)]." 99-ORD-121, p. 17.
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 As in 07-ORD-188 (a related appeal filed by Mr. Lowe against the Environmental and Public Protection Cabinet on the same day this appeal was filed), Mr. Lowe's appeal "comes to us in an unusual procedural posture, having been referred to the Attorney General by the Auditor of Public Accounts." Given the substance of the materials that Mr. Lowe submitted, which satisfied the requirements of KRS 61.880(2)(a) relative to his request dated June 27, 2007, the Attorney General elected to treat the matter as an Open Records appeal and Mr. Lowe did not object upon receipt of the notification promptly issued by this office.
2 Although Mr. Stephens further argues that Mr. Lowe's appeal is moot because the Cabinet "has worked to compile all appropriate documents and respond to Mr. Lowe" since receiving the notification of his appeal, this assertion is not accurate. 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." See 04-ORD-046; 03-ORD-087. Since the Cabinet has denied having possession of the records at issue, it necessarily follows that the Cabinet has not made the records which are responsive to Mr. Lowe's second request dated June 27, 2007, available; these positions are mutually exclusive. While the Cabinet has otherwise complied with relevant provisions of the Act, an official decision to that effect differs from a determination that any issues raised by the appeal are moot because all records have been provided. In the latter case, the Attorney General is expressly prohibited from issuing a decision per 40 KAR 1:030, Section 6 and resolves the matter by issuing a letter (unless the matter is moot only as to some of the records at issue as in 07-ORD-106, the decision cited by the Cabinet). Accordingly, the Cabinet does not prevail on this argument.
3 Included with Mr. Stephens' response on behalf of the Cabinet is a copy of his letter to Mr. Lowe dated August 16, 2007, in which he advised Mr. Lowe that "the Personnel Cabinet is not in possession of the information you requested." Accordingly, Mr. Stephens further advised Mr. Lowe to please forward his request for items # 1-2 to:
Environmental and Public Protection Cabinet
Office of Legal Services
Attn: Shannan Stamper
500 Mero Street
Frankfort, KY 40601
For items #3-4, Mr. Lowe was advised to forward his request to:
Finance Cabinet
Office of Legal Services
Attn: Gwen Pinson
702 Capitol Avenue, Room 188
Frankfort, KY 40601
4 By letter dated August 21, 2007, Mr. Lowe challenged the Cabinet's characterization and summary of the events in question, ultimately asking the Attorney General to "investigate the applications and [hiring] of the EPPC Inspector General staff." As explained below, this office is not empowered to conduct investigations under the Open Records Act nor can allegations of fraudulent activity like those made by Mr. Lowe be properly addressed in this forum.
5 Since this appeal epitomizes the kind of factual dispute which the Attorney General is unable to resolve, this office also reminds the parties of the following:
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 [the Cabinet has] permitted inspection of some records [Mr. Lowe] has 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.
03-ORD-061, p. 2, citing OAG 89-81, p. 3; See also 03-ORD-204. Similarly, the Attorney General has long recognized that "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3. In light of the foregoing, this office declines to make a finding as to procedural and factual issues presented by this appeal.
6 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 89-32; OAG 83-111; OAG 80-308; 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.