Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Northpoint Training Center violated the Kentucky Open Records Act in denying the request of William Mack for a copy of "the ruling by the Department of Corrections General Counsel on 01/01/04, that [sic] says those who fall under as a violent offender is [sic] ineligible to receive work time credit." Although NTC cannot produce for inspection or copying a record which does not exist or which it does not possess, the record is devoid of evidence documenting the steps taken by NTC to identify and locate the record in dispute; accordingly, this office is unable to assess whether the search was adequate under the standard articulated in 95-ORD-96. As consistently recognized by the Attorney General, a response to a request for a specific record which does not unequivocally indicate whether such a record exists or not, such as the ambiguous response by NTC, is deficient. A public agency's "inability to produce records due to their nonexistence is tantamount to denial, and it is incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9. Based upon the foregoing, this office must conclude that NTC has not satisfied the burden of proof assigned to public agencies by KRS 61.880(2)(c).
On a standard request form dated August 27, 2007, Mr. Mack submitted his request, indicating that said information "was made reference to by Marilene Rowland on 01/09/06 to me." By letter dated September 19, 2007, Jennifer Marye, Offender Information Specialist, responded on behalf of NTC, advising that she had "been unable to locate the document" requested (emphasis added). To the extent "that the record may still exist but cannot be found, it is exempt from inspection or copying pursuant to KRS 61.878(1)(l), KRS 447.154, CR 26.02, and KRE 503, because it is a confidential record protected by the attorney-client privilege and work product rule." (Emphasis added.) Citing
Hahn v. University of Louisville, Ky. App., 80 S.W.2d 771, 774 (2002), Ms. Marye further noted that "KRS Chapter 61 cannot be construed in a way which allows communications or documents protected under these privileges to be turned over." As explained by Ms. Marye, "KRS 197.047 and KRS 439.3401(1) govern the eligibility of work for time credit. These are the statutes to which you should refer to address this issue." In conclusion, she thanked Mr. Mack for his "patience while [she] conducted research regarding [his] request." 1 By letter dated September 20, 2007, Mr. Mack initiated this appeal from the denial of his request, noting that the ruling was used by NTC to deny him "work time credit." Mr. Mack does not believe the record is exempt "due to the fact [NTC] is using this opinion as policy in threatening inmates of a certain class without statutory justification."
Upon receiving notification of Mr. Mack's appeal from this office, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, responded on behalf of NTC. According to Ms. Dennis:
Ms. Rowland did refer to a ". . . ruling of Department of Corrections General Counsel" in an Institutional Offender Information Services Response to Mr. Mack's request for administrative review of work time credit pursuant to Corrections Policy & Procedure (CPP) 17.4. [As evidenced by the attached Exhibit 1] However, no written record of a "ruling . . . on 01/01/04" has been located, and Marilene Rowland retired from service from the Department of Corrections effective July 31, 2007.
It is likely that the so-called General Counsel's "ruling" was not placed in writing, and that Mr. Mack read Ms. Rowland's response out of context. A closer reading of the 01/09/06 Institutional Response to Mr. Mack's appeal shows that clearly [] no ruling was issued on 01/01/04, as follows:
Even if a record existed at one time documenting the General Counsel's "interpretation" of SB 123, enacted April 10, 2003, the interpretation or opinion would not have been, as inadvertently mischaracterized by Ms. Rowland, a "ruling." The Office of General Counsel has no authority to make a "ruling" in a sentence calculation matter. To this end, Ms. Marye properly continued by explaining to Mr. Mack that [a] record of the General Counsel's interpretation of SB 123, if found, would be exempt from inspection or copying pursuant to KRS 61.878(1)(l), KRS 447.154, CR 26.02, and KRE 503.
(Emphasis added.)
Having reiterated the remainder of Ms. Marye's response, Ms. Dennis asserts that "[s]imply because Ms. Rowland inadvertently referred to the General Counsel's interpretation of a new law as a 'ruling' does not make the communications any less privileged and exempt from disclosure to any person." In closing, Ms. Dennis argues "there is no basis upon which to find that the NTC violated the [O]pen [R]ecords [A]ct by failing to disclose to Mr. Mack a copy of an opinion from its General Counsel which it could not find, may not even exist, and which, even if existent, is protected from release by the attorney client and work product privileges." 2 (Emphasis added.)
As long recognized by the Attorney General, a public agency is not required to honor a request for a record which does not exist or which it does not possess. 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 NTC cannot produce for inspection or copying that which it does not have. 02-ORD-118, p. 3. To clarify, the right of inspection attaches only after the requested record is "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. 3 In addressing the obligations of a public agency when denying access to public records for this reason, 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 (emphasis added); 04-ORD-205. Accordingly, this office has consistently recognized that a response by a public agency violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act by affirmatively so indicating. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3 (emphasis added); 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 a requested record, 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; 02-ORD-144; 94-ORD-140. However, 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 record.
To satisfy the burden of proof imposed upon public agencies by KRS 61.880(2)(c), a public agency must offer some explanation for the nonexistence of the requested records at a minimum; NTC has merely indicated that Ms. Rowland mischaracterized the record as a "ruling," asserted that no such record has been located, and speculated regarding the possible reasons for its presumed nonexistence. Also noticeably lacking from the response of NTC is any indication, beyond Ms. Marye's general reference to having conducted research, that a proper search was conducted prior to reaching this conclusion. Compare 05-ORD-108 (specified dispatchers whose records were requested were not full-time public employees, and, therefore, did not qualify as "law enforcement telecommunicators" as required to trigger application of KRS 15.550 and KRS 15.560, meaning that 911 Dispatch would not have copies of records documenting their completion of the requisite training); 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 the 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); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 94-ORD-140 (records of investigation not in sheriff's custody because sheriff did not conduct the investigation).
In 95-ORD-96, this office articulated the following standard by which to judge the adequacy of a search for public records:
[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 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, 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. at p. 7.
Although NTC cannot produce for inspection or copying records which do not exist, nor is NTC required to create a record, the limited evidence on appeal does not reflect NTC made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the requested records." While this office does not speculate regarding the records management procedures adopted by NTC, nor is there any evidence of bad faith, it stands to reason that a mechanism should exist by which the NTC Records Custodian can identify and locate any record which is responsive or, in the alternative, conclusively determine that none exists. Having failed to substantiate that NTC made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the requested records," NTC failed to satisfy its burden of proof under KRS 61.880(2)(c).
In previous decisions, the Attorney General has addressed the question of how specific a public agency must be in denying the existence of a record being sought under the Open Records Act. In OAG 91-101, this office held that a public agency's response is not sufficient under KRS 61.880(1) if the response fails to advise the requesting party whether the record exists. Relying upon OAG 86-38, the Attorney General construed the obligation of the agency relative to a request for a public record as follows:
KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested. If the documents exist and inspection is denied, you should list each document which the [agency] will not permit the requesting party to inspect and state how the exception to public inspection relied upon applies to the particular document withheld from inspection.
In other words: "If a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4.
In OAG 91-101, the record in dispute had been specifically identified as "minutes of a meeting of tenured faculty members conducted by Dr. Fred Knapp in November 1986." When responding, the University of Kentucky neither admitted nor denied the existence of the minutes. In our view, the agency was required to advise the requesting party whether the record existed unless it was unable to make such a determination by virtue of his failure to identify with reasonable particularity the meeting at which the minutes were taken. In 99-ORD-39, the Attorney General rejected a public agency's attempt to shield from public scrutiny the existence of an investigation into allegations of sexual harassment leveled against a high ranking official by refusing to confirm or deny that an investigation was underway or had been concluded; there, we focused on the duties assigned to the Attorney General by KRS 61.880(2), declining to give deference to the agency's sexual harassment policy, and proceeding to adjudicate the matter based upon the facts presented. In 01-ORD-59, this office focused on the duties assigned to public agencies by KRS 61.880(1), and in particular, the duty to unequivocally indicate whether a record exists, and, if such a record exists but should not be disclosed, the statutory basis for denial after examining the record. 01-ORD-38; 97-ORD-16; 96-ORD-164; OAG 91-101. At issue in that appeal was the inability of the public agency to produce for inspection a final report because no final report had been transmitted to it by the federal agency responsible for the investigation. While it was obvious in that case, as here, that the agency could not furnish that which it did not have or which did not exist, this office found that a response which did not clearly so indicate was deficient. See also 06-ORD-050; 05-ORD-050; compare 96-ORD-101. As repeatedly noted by this office, a public 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. Consistent with the cited line of decisions, this office finds that NTC should have unequivocally advised Mr. Mack that no records exist which are responsive to his request, if that is the case, after outlining the search methodology employed in reaching that conclusion.
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.
Distributed to:
William Mack, #117136
Jennifer MaryeOffender Information SpecialistNorthpoint Training CenterP.O. Box 479Burgin, KY 40310-0479
Emily DennisStaff AttorneyOffice of Legal ServicesJustice and Public Safety Cabinet125 Holmes Street, 2nd FloorFrankfort, KY 40601
Footnotes
Footnotes
1 Although Mr. Mack does not raise this issue on appeal, nor does the record contain sufficient evidence for this office to find a violation, NTC was required to issue a written response within five business days of receiving his request per KRS 197.025(7).
2 Since NTC is unsure whether such a record actually exists, it stands to reason that NTC was not able to review the document in order to determine whether it could properly be withheld; therefore, NTC cannot successfully argue that same is protected by the attorney-client privilege or otherwise satisfy its burden of proof under KRS 61.880(2)(c). Given that NTC admittedly shared the content of the allegedly privileged communication with at least one inmate, and possibly others, it seems unlikely that NTC could establish that each of the elements of the privilege have been met even assuming the record could be located. In sum, the speculative denial of a record which has not been located is legally unsupportable. With regard to application of the attorney-client privilege, 06-ORD-125, a copy of which is attached hereto and incorporated by reference, is controlling.
3 As long held 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." Accordingly, this 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 also 98-ORD-5. As a corollary to this proposition, the Attorney General has frequently noted that a public agency cannot afford a requester access to nonexistent records.