Request By:
Dennis J. LangfordGarland "Andy" Barr
Deputy General Counsel
Office of the Governor
700 Capital Avenue, Suite 100
Frankfort, KY 40601David L. Reichert
General Counsel
Office of Legal Services
OHBC Legal Division
101 Sea Hero Drive
Frankfort, KY 40601Barbara Teague
Acting Director
Public Records Division
Department for Libraries and Archives
300 Coffee Tree Road
P.O. Box 537
Frankfort, KY 40601
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Office of the Governor violated, or subverted the intent of, the Kentucky Open Records Act in the disposition of Dennis Langford's request for "copies of any reports, notes or comments that were given to [Governor Ernie Fletcher] or [his] office by the 'transition team' concerning the operation and management of the Department of Housing, Buildings and Construction in the [o]ld Public Protection Cabinet." Because the search conducted by the Governor's Office Governor did not yield any records matching this description, the Governor's Office is unable to honor the request; however, the Governor's Office does not affirmatively indicate that no such records were created or establish that same were destroyed per the applicable records retention schedule. Although the Governor's Office did not violate the Open Records Act, insofar as a public agency cannot make available for inspection or copying records which no longer exist or those which it does not possess, the apparent failure of the Governor's Office to implement a program for ensuring preservation of records, in accordance with KRS 61.8715, 1 constitutes a subversion of the intent of the Act. 2
By letter directed to Governor Fletcher on October 9, 2007, Mr. Langford submitted his request, further advising that the "lady who met with the Department was Ms. Tandy Patrick." Acknowledging receipt of his request on October 12, 2007, Garland "Andy" Barr, Deputy General Counsel, advised Mr. Langford that the Governor's Office "is not in possession of any public records responsive to your request" in a letter dated October 15, 2007; however, Mr. Barr forwarded the request "to the Office of Housing, Buildings and Construction and the Environmental and Public Protection Cabinet for further review and response." By letter dated October 17, 2007, David L. Reichert, General Counsel for the OHBC, advised Mr. Langford that his agency "does not have any reports, notes or comments by the 'transition team' that was [sic] given to the Governor's Office." According to Mr. Reichert, the "only information contained in this Office related to the transition consists of a document entitled 'Transition Document' bearing [Mr. Langford's] name as Commissioner and a document outlining the then-Department's statutory authority over its various divisions." On October 31, 2007, Mr. Langford initiated this appeal from the denial of his request "for records of the report of the 'Blue Ribbon' transition team. "
Upon receiving notification of Mr. Langford's appeal from this office, Mr. Reichert reiterated that his office does not possess any responsive documents; however, the OHBC identified documents "relating to the transition that are in the Office's possession and expressed [its] willingness to make copies or allow inspection of those documents." In addition, Mr. Reichert advises that "a 'Transition Report' has been located" in his office "which was prepared by the then-Department to the Cabinet. Specifically, it contains a cover memorandum from Mr. Langford, Commissioner, to Janie Miller and Redmon Lair, the Cabinet Secretary and Deputy Secretary, respectively. It also contains memoranda regarding the various sections within the then-Department." As explained by Mr. Reichert, said report "was located in a hearing room within the Office and was only discovered after, once again, checking with staff members present during the transition period. The failure to include the report in our October 17 letter as an item which could be made available to Mr. Langford was purely inadvertent." In direct response to Mr. Langford's request, Mr. Reichert emphasizes that his office has "no information or copies of documents that were given by the transition team to the Governor's Office. We simply do not know what the transition team did or did not give the Governor's Office." Although the Transition Report and other documents are not responsive to Mr. Langford's request, Mr. Reichert's office remains willing to provide those records to him. 3
Based upon the limited and conflicting evidence of record, this office was unable to resolve the issues presented; accordingly, the Attorney General requested, by letter dated November 9, 2007, that Mr. Barr provide this office with additional information under authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. More specifically, this office posed the following questions:
1) Is the "'Blue Ribbon' transition team" to which Mr. Langford refers on the cover page of his letter the same "transition team" to which both parties refer elsewhere in the record? If not, please explain the distinction.
2) Assuming they are one and the same, how did the Blue Ribbon transition team/ transition team come into existence?
3) Who were the members of the transition team and how were they selected?
4) What duties were assigned to members of the team individually and/or the team as a whole?
5) Was Tandy Patrick a member of the transition team? Also, did she prepare any reports, notes or comments after meeting with the [Office] of Housing, Buildings and Construction?
6) Who was charged with maintaining records generated by the team in the course of performing its duties, and in whose custody are the records currently?
7) When and how was the team dissolved?
8) Why did Mr. Reichert, acting in his capacity as general counsel for the [Office of Housing, Buildings and Construction], respond to Mr. Langford's appeal challenging the denial of his request for any records which presumably would be in the custody of the Governor's Office?
In addition, the Attorney General asked Mr. Barr to provide this office with a copy of the "'Transition Report'" located by the OHBC after Mr. Langford's appeal was filed; however, Mr. Barr implicitly declined to honor this request.
By letter dated November 21, 2007, Mr. Barr responded to some of the questions asked. To begin, Mr. Barr correctly notes that the Governor's Office of General Counsel "investigated the matter" and issued a written response within three business days per KRS 61.880(1). Reiterating that he forwarded Mr. Langford's request to the EPPC and the OHBC, as a "courtesy," 4 Mr. Barr asserts that Mr. Langford then filed the instant appeal, "without explanation and without providing any legal or factual basis for objecting to the actions of this Office or the OHBC." 5 In direct response to our written request for additional information, Mr. Barr quotes the language of KRS 61.880(2)(c), and cites a line of inapposite decisions in arguing that it "does not require a public agency to generate documentation or provide undocumented 'information' to the Attorney General, as was requested in this case." Without "waiving this objection," his office is "nevertheless willing to assist to the extent it is able to do so." 6 In relevant part, Mr. Barr explains:
To the best of our knowledge and belief, the transition team was selected by Governor-elect Fletcher and others in November 2003. Ms. Tandy Patrick, among others, was assigned to the team in charge of assisting with transition in the Public Protection Cabinet, which contained the old "Department for Housing, Building and Construction." To the extent that Ms. Patrick or anyone on her team generated any records described by Mr. Langford, those records either no longer exist or cannot be located in this Office at this time . To the best of our knowledge and belief, the 2003 transition team was dissolved soon after, if not before, the inauguration of Governor Fletcher. Finally, Mr. Reichert responded to Mr. Langford's appeal because he received the "Notification to Agency of Receipt of Open Records Appeal." 7 This Office did not respond prior to this letter because, again, it does not have any responsive records in its possession [emphasis added].
This Office has made a good faith effort to locate the records described in Mr. Langford's request and it has found none. "Suffice it to say that a public agency is not required to, nor can it logically be required to, produce for inspection or copying records that do not exist or are not in its custody. See e.g., OAG 83-11, OAG 87-54; OAG 91-203; 98-ORD-200; 99-ORD-198. Because the Open Records Act governs access to existing public records in the public agency's custody, an agency cannot, by extension, be required to create records. OAG 76-375; OAG 90-101; 96-ORD-251." 02-ORD-208.
While Mr. Barr is correct in subsequently asserting that his "Office cannot be forced to produce what it does not have[,]" the analysis does not end there.
As long recognized by the Attorney General, a public agency is not required to honor a request for records which do not exist or those which it does not possess. 04-ORD-036, p. 5; 03-ORD-205; 99-ORD-198; OAG 83-111. It stands to reason that the Office of the Governor 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 records are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. In addressing the obligations of a public agency when denying access to public records for this reason, the Attorney General has consistently observed that a public 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 (citations omitted). While a public 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. 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. On multiple occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4. 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. Because the record(s) at issue no longer exists, or cannot be located, and the Office of the Governor has denied access on that basis, the Attorney General must affirm its denial of Mr. Langford's request; however, the uncertainty expressed by the Office of the Governor shifts our focus to the interrelated issues of proper records management and records access.
Pursuant to KRS 61.8715, the enactment of which this office characterized as a "watershed in the evolution of the Open Records Law[,]" 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 the efficient administration of government and to provide accountability of government activities. . . ." KRS 61.8715. 94-ORD-121, p. 8. In addressing the "essential relationship" between these chapters, the Attorney General has further 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. In other words, "the key to records access is effective records management." Id., p. 10.
A "transition report" concerning the operation and management of the OHBC prepared for the Governor by a "transition team" or member thereof would be properly characterized as Official Correspondence, 8 described at Series No. M0001 of the General Schedule for State Agencies , or would fall into the category of Special Studies and Reports, 9 described at Series No. M0042 of the General Schedule . In terms of the applicable retention period, the distinction is one without a difference; both are characterized as permanent records. More specifically, the disposition instruction for official correspondence directs that any such record(s) must be maintained for an "indefinite" 10 period by the agency and transferred "to the State Archives Center when administrative value has ceased." According to the disposition instruction for special studies and reports, one copy must be maintained permanently 11 by the agency and one copy must be transferred "to the State Archives Center after completion." Excess copies of such records can only be destroyed "when no longer useful." Regardless of whether the record(s) in dispute was properly characterized as official correspondence or a special report, 12 or it was ultimately lost or destroyed, the failure to maintain it was not consistent with applicable retention requirements.
As long recognized by the Attorney General, "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." OAG 86-35, p. 5. However, since July 15, 1994, when the amendments to the Open Records Act took effect, this office has applied a higher standard of review to denials based on the nonexistence or destruction of the records. In order to satisfy its burden of proof under KRS 61.880(2)(c), 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. Because the Office of the Governor failed to provide even a minimal explanation for the apparent loss or destruction of the record(s), this office must conclude that it failed to adequately manage its records. Loss or destruction of a public record creates a rebuttable presumption of records mismanagement, and the Office of the Governor has failed to overcome this presumption.
While this office cannot declare the failure by the Governor's Office to produce a record that was apparently either lost or prematurely destroyed a violation of the Open Records Act, this office does find that its failure to implement an effective program for ensuring records preservation constitutes a subversion of the intent of the Act within the meaning of KRS 61.880(4). Accord, 06-ORD-061; 05-ORD-141; 94-ORD-121. Ultimately, the Attorney General cannot afford Mr. Langford the relief he seeks, namely, access to a copy of the report prepared by the transition team; however, this office has referred the matter to the KDLA for additional inquiry as that agency deems warranted.
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 In relevant part,KRS 61.8715 provides:
The General Assembly finds an essential relationship between the intent of this chapter and that of KRS 171.410 to 171.740, dealing with the management of public records, and of KRS 11.501 to 11.517, 45.253, 171.420, 186A.040, 186A.285, and 194B.102, dealing with the coordination of strategic planning for computerized information systems in state government; and 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 these statutes.
2 KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
3 By letter directed to Mr. Reichert on November 13, 2007, a copy of which Mr. Langford forwarded to the undersigned counsel, Mr. Langford clarified that he is "looking for the report to the Governor by Ms. Patrick and/or the transition team. " On November 8, 2007, Mr. Reichert contacted Mr. Langford by telephone, and they "agreed that the report [Mr. Reichert] found and the previous records [of which his office has possession] are those prepared by [Mr. Langford], as [C]ommissioner, and/or [his] staff at the time and do not include the records [he] is requesting." As Mr. Langford explained to Mr. Reichert during that conversation, Ms. Patrick's report "should have been made to the Governor since he was the one who impaneled the 'Blue Ribbon Transition Team' and [Mr. Langford's] understanding of the record retention laws is that such reports must be retained." Because the records described by Mr. Reichert in his letter of November 7, 2007, are not the records Mr. Langford requested, he asked this office to proceed with his appeal.
4 While Mr. Barr is correct insofar as apublic agency is not statutorily required to forward a request, a public agency is required to comply with KRS 61.872(4), pursuant to which:
If the person to whom the application if 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.
5 To clarify, no such "explanation" or "basis" is required by KRS 61.880(2)(a), although this office is unable to conclusively resolve factual disputes and has often said as much.
6 Although this office has long recognized that a public agency is not required to compile information or create a record in order to satisfy a request submitted under the Open Records Act, nor is the Attorney General empowered to order the creation of a record or declare the failure to do so a subversion of the intent of the Act, KRS 61.880(2)(c) in conjunction with 40 KAR 1:030, Section 3 expressly authorizes the Attorney General to request additional documentation to facilitate our statutorily mandated review once an Open Records appeal has been filed; to this end, the Attorney General requests that public agencies respond to such questions on a consistent and regular basis.
In 96-ORD-206, this office acknowledged being "severely handicapped in conducting our review" by virtue of the agency's refusal to honor our written request for additional information. Quoting from an earlier decision, the Attorney General found:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception, [footnote omitted], it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial does not satisfy the burden of proof imposed on the agency. We have received no supporting documentation to confirm the assertion[.]
96-ORD-206, citing 95-ORD-61, p. 5. Relying upon KRS 61.880(2)(c) and 40 KAR 1:030, Section 6, this office has observed that "[w]ithout this authority, the Attorney General's ability to render a reasoned open records decision is severely impaired." 96-ORD-106, p. 5. Because he "does not have authority to compel disclosure of the disputed records, his only recourse is to find against the public agency in the hope that the agency will more conscientiously discharge its duties under the Open Records Act in the future." Id. In both 95-ORD-61 and 96-ORD-206, the Attorney General concluded that the agencies whose denials were being challenged had not satisfied their burden of proof in sustaining those denials under KRS 61.880(2)(c). See 07-ORD-220; 04-ORD-031. Here, this office does not find a violation of the Act based on the failure to produce the record(s) in question, but does find a subversion of the intent of the Act based on the failure to manage and maintain records in accordance with applicable records retention schedules - nothing more, nothing less. To clarify, the Attorney General did not ask the Office of the Governor to "generate documentation, " but merely to answer questions formulated to assist in resolution of this matter and to produce a copy of a record the existence of which had been established by the OHBC; likewise, the Attorney General did not request a copy of the records in dispute for the purpose of conducting in camera inspection, which is a relatively common practice, inasmuch as the record(s) at issue apparently no longer exists, and the Office of the Governor cannot produce for inspection or copying a nonexistent record(s) to Mr. Langford or this office. However, the limited extent to which the Office of the Governor was able to respond and/or chose to respond to such an inquiry reveals a records management issue.
7 A copy of said notification was also issued to Mr. Barr in his capacity as General Counsel for the Office of the Governor.
8 In the preface to the General Schedule , entitled "An Explanation of General Records," Official Correspondence is defined at page 1 as:
. . . a permanent record which documents the major activities, functions and programs of an agency and the important events in its history. It is critical that official correspondence be preserved as it provides a record of policy evolution and formulation, how and why decisions are made, and the effect of those decisions upon an agency and its constituencies. Without official correspondence, we lose much of the understanding of the administration of an organization. Its retention, therefore, is crucial to the preservation of the administrative history of an agency [emphasis added]. Official correspondence must be transferred to the State Archives per instructions in the General Schedule for State Agencies - Miscellaneous Records .
9 "Special Studies and Reports not formally published also contain important facts and statistics about the organization, policies, and operation of the agency. One copy of each study or report (M0042) must be forwarded to the State Archives, per normal transfer procedures, and one copy should be retained permanently by the agency." General Schedule for State Agencies -- An Explanation of General Records , p. 2.
10 According to the definitional section of the General Schedule , the term indefinite is "not a retention period," but "means the period of time before the retention of the record begins."
11 "Permanent records" are those "which have been appraised by staff of the [KDLA] and the agency's Records Officer as having sufficient historical, informational, or evidential value to warrant their continued preservation beyond the time they are needed for administrative, legal, or fiscal purposes. Such records are preserved because they constitute evidence of an agency's functions, policies, decisions, procedures, and operations. Generally, permanent records comprise 5% or less of an agency's total records."
12 Given the paucity of evidence, this office is unable to conclusively determine the proper characterization.