Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Metro Housing Authority violated the Open Records Act in the disposition of James W. Coleman's July 23 and July 30, 2007, requests for records relating to a Section 8 participant living in premises located at 2009 West Chestnut Street, Louisville, Kentucky 40203 whose rent is subsidized by a federally funded program administered by the Authority. Dr. Coleman is the owner of the premises in which the tenant resides and has been embroiled in a protracted dispute with the tenant concerning unpaid rent and damage to the premises that culminated in a July 11, 2007, hearing conducted by the Authority. We find that although the record on appeal contains insufficient unrebutted evidence to support Dr. Coleman's claim that the Authority improperly withheld, or indeed concealed, records that were responsive to his request, the record does support an inference of records mismanagement within the contemplation of KRS 61.8715. For this reason, we have referred the matter to the Kentucky Department for Libraries and Archives, under authority of the referenced provision, for further inquiry as that agency deems appropriate.
In the interest of brevity, we summarize the parties' positions. In so doing, we offer our assurances that their arguments were carefully considered and our apologies for what represents, at best, an oversimplification of the record on appeal. Dr. Coleman asserts that he "was denied access to each and every requested document that pertained specifically to the tenant, " and provides a factual narrative in support of his belief that many or all of these records were improperly removed from responsive files to conceal irregularities in the manner in which the Authority deals with noncompliant tenants. The Authority responds that Dr. Coleman "was given access to the entire file in question on August 20, 2007," and that, contrary to Dr. Coleman's belief that documents have been removed from the file, "[m]any documents that he seeks never existed." In support, the Authority attaches a letter from Art Wasson, Director of Leased Housing, in which Mr. Wasson addresses generally, and in some cases specifically, each of Dr. Coleman's requests and in which he confirms that Dr. Coleman "was given complete and open access to the client file on August 20, 2007, and expressly controverts his allegations of wrongdoing. In a series of letters submitted to this office following commencement of Dr. Coleman's appeal, the Authority disputes each allegation Dr. Coleman levels relative to the disappearance of responsive records, factually countering each of his claims.
Given these competing factual accounts, we cannot determine that "the [Authority] violated provisions of KRS 61.870 to 61.884" 1 by improperly withholding nonexempt public records. The record on appeal demonstrates that the Authority has afforded Dr. Coleman access to a broad range of records, and asserted that no additional responsive records exist. When an agency's denial of an open records request is postulated on the nonexistence of records, the Attorney General has traditionally taken the position that the denial does not constitute a violation of the Open Records Act insofar as the agency cannot afford the requester access to a record or records that it does not possess. See, e.g., OAG 83-111; OAG 87-112; OAG 91-112; 97-ORD-17; 01-ORD-11; 02-ORD-120. Moreover, where some, but not all, of the requested records are disclosed, this office has generally declined to attempt 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 (emphasis added). We see no reason to depart from that position in the instant appeal.
Since 1994, the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, 2 pertaining to management of public records. Nevertheless, the Act regulates access to public records that have been prepared, owned, used, or are in the possession of or retained by a public agency. 3 Our decisions in open records disputes are therefore generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record, and, if so, whether the record is subject to public inspection. Simply put, Kentucky's Open Records Act applies to records that are already in existence, and that are in the possession or control of the public agency to which the request is directed. See, e.g., 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); 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).
The Authority asserts that it has afforded Dr. Coleman access to all records in its custody that are responsive to his requests. It therefore finds itself in the position of "proving a negative" relative to the nonexistence of any other responsive records. Addressing this dilemma, in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), the Kentucky Supreme Court observed:
The Open Records Act is silent as to the procedure to be followed when a requester seeks to enforce the Act over a public agency's denial of the record's existence. The Act contemplates that an agency will deny an open records request when it believes that the requested records are exempt, but it does not envision a situation . . . where the agency claims that the records do not exist.
. . .
[T]he best way to uphold [the basic policy of the Act, recognizing "that free and open examination of records is in the public interest," when an agency denies the existence of the requested records] is to ensure that the complaining party has an opportunity to disprove a public agency's denial of the existence of records . . . To hold otherwise could remove accountability from the open records process, allowing public agencies to avoid judicial review by denying a record's existence altogether rather than claiming a statutory exemption.
Nevertheless, the Court continued:
[T]he General Assembly has also evidenced a concern that public agencies not be unreasonably burdened and that essential functions not be disrupted by open records requests. KRS 61.872(6). The unfettered possibility of fishing expeditions for hoped-for but nonexistent records would place an undue burden on public agencies. In order to refute a complaining party's claims to a nonexistent record, the agency would essentially have to prove a negative, presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives.
On this basis, the Court concluded "that before a complaining party is entitled to such a hearing [to disprove the agency's denial of the existence of the requested records], he or she must make a prima facie 4 showing that such records do exist."
In a series of open records decisions issued since the Bowling case was decided, this office was obliged to affirm public agency denials of open records requests based on the nonexistence of responsive records in the absence of a prima facie showing that the records sought in fact exist. See, e.g., 06-ORD-042; 06-ORD-223; 07-ORD-045; 07-ORD-085; 07-ORD-188; 07-ORD-190. In the instant appeal, Dr. Coleman presents a factual narrative that, in his view, is indicative of the existence of additional responsive records which he identifies with particularity. The Authority presents "evidence to the contrary" to refute the "fact[s he] presume[s] to be true" relative to these records. Given this conflicting evidence, we cannot conclude that a prima facie showing that the records exist has been made. Accordingly, we are obligated to affirm the Authority's denial of Dr. Coleman's request relative to the nonexistent records under the rule of law announced in Bowling, above.
Consistent with the referenced open records decisions, we further find that this office is not the appropriate forum for review of Dr. Coleman's claim that responsive records are being willfully concealed. KRS 61.990(2)(a) establishes penalties for public officials who willfully conceal or destroy public records with the intent to violate the Open Records Act. Evidence of willful concealment or destruction of public records, if it exists, must be presented to the local prosecutorial authorities. The Attorney General is not empowered to render a decision on this question or any other non-open records related questions such as those relating to alleged irregularities in the Authority's interpretation of applicable federal laws and the manner in which it deals with noncompliant tenants. Accord, 93-ORD-15; 96-ORD-185; 05-ORD-099; 07-ORD-188; 07-ORD-190.
Having so concluded, we nevertheless find that the record on appeal is indicative of records mismanagement on the part of the Authority. In its initial response to Dr. Coleman's original request, the Authority acknowledged the loss or destruction of at least one responsive record, namely, the initial inspection report dated September 17, 2003. On behalf of the Authority, Director of Leased Housing Art Wasson explained that "[t]his report no longer exists and was apparently destroyed as part of the merger between the two housing authorities." This statement was indirectly confirmed in supplemental correspondence submitted by the Authority on September 7, 2007. Although, once again, the Authority cannot produce for inspection a record that is not in its possession, the premature loss or destruction of a public record raises significant records management issues which we are obliged to address.
Pursuant to KRS 61.8715, public agencies are required "to manage and maintain [their] records according to the requirements" of the Open Records Act, KRS 61.870 - 61.880 and the State Archives and Records Act, KRS 171.410 - 171.740, in order "to ensure that efficient administration of government and to provide accountability of government activities. . . ." KRS 61.8715. On this issue, the Attorney General has observed:
Until July 15, the State Archives and Records Act, codified at KRS 171.410, tracked a parallel path to that of the Open Records Act. Those paths now converge. Under the provisions of the Archives and Records Act, "[t]he head of each state and local agency shall establish and maintain an active continuing program for the economical and efficient management of the records of the agency." KRS 171.680. The agency's program must provide for:
Among the duties imposed on the agency head by operation of these provisions, he must "establish such safeguards against removal or loss of records as he shall deem necessary and as may be required by rules and regulations issued under authority of KRS 171.410 to 171.740." KRS 171.710 . These safeguards include "making it known to all officials and employees of the agency that no records are to be alienated or destroyed except in accordance with law, and calling attention to the penalties provided by law for the unlawful removal or destruction of records." KRS 171.710.
In enacting KRS 61.8715 the General Assembly recognized that the intent of the Open Records Act, to provide full access to public records, was essentially related to, and would be promoted by, efficient records management. This, of course, is the intent and purpose of the State Archives and Records Act. Subversion of the intent of the Archives and Records Act thus constitutes subversion of the intent of the Open Records Act. If a public agency fails to discharge its statutorily mandated duty to establish effective controls over the creation, maintenance, and use of records, and to make known to all of its officials and employees that no records are to be destroyed except in accordance with the law, the agency subverts the intent of the Open Records Act by frustrating full access to public records.
94-ORD-121, p. 8-10.
As noted, this office has long recognized that a public agency cannot afford a requester access to records which have been lost or destroyed. However, since the July 1994 enactment of KRS 61.8715, we have applied a higher standard of review relative to denials based on the loss or destruction, of the requested records. In order to satisfy its statutory burden of proof, a public agency must, at a minimum, document what efforts were made to locate the missing records or explain by what authority the records were destroyed. The loss or destruction of a public record creates a presumption of records mismanagement, but that presumption is rebuttable. The Authority advised that the inspection report which Dr. Coleman requested was lost or destroyed in the course of the merger between the city and county housing authorities. This explanation is insufficient to rebut the presumption of records mismanagement. In view of this apparent failure to establish effective controls over the creation, maintenance, and use of that record, we have referred this matter to the Department for Libraries and Archives, Public Records Division, for further inquiry as that agency deems warranted under Chapter 171 of the Kentucky Revised Statutes.
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 See, KRS 61.880(1).
2 See, KRS 61.8715.
3 See, KRS 61.870(2).
4 Black's Law Dictionary, 1071 (5th ed. 1979), defines the term prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."