Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Perry County School System violated the Open Records Act in the disposition of John Hick's October 4, 2007, request for "a record on when Perry Co. School Brd. contacted the Floyd County School Board for references on me," and other records related to Mr. Hick's application for a position with the Perry County School System. For the reasons that follow, we conclude that, with the exception of a procedural violation, the agency cannot produce for inspection or copying records which it does not possess or no longer exist.
In his October 15, 2007, letter of appeal, Mr. Hicks advised that he sent his request to the Perry County School System on October 4, 2007, and he had yet to receive a response to his request.
After receipt of notification of the appeal, Timothy Crawford, board attorney for the Perry County School System, by letter dated October 25, 2007, provided this office with a response to the issues raised in the appeal. In his response, Mr. Crawford advised, in relevant part:
First, the Perry County School System does not have a record or document of the Perry County School Board contacting the Floyd County School Board for references on John Hicks.
Second, the Perry County School District does not have a letter from Paul W. Fanning, the former superintendent of the Floyd County School System.
Third, Mr. Hicks was an unsuccessful applicant for a position in the Perry County School System and his application is no longer on file under the retention system used by the Perry County School District. Mr. Hicks had not and evidently is not requesting a copy of his job application.
In a reply letter to Mr. Crawford's response, Mr. Hicks enclosed a June 20, 2003, letter to the Perry County Board of Education from his attorney concerning the Board's denial of Mr. Hicks' application for employment as a special education instructor. Mr. Hicks also enclosed an undated letter, which he states was the response to his attorney's letter, from Jonathan Jett, Director of Special Education, Perry County Schools, addressed to Mr. Hicks' attorney, advising him that based on a couple of letters they had received concerning Mr. Hicks' work history, they did not feel he was a qualified applicant and would not be considered for employment.
By letter dated December 3, 2007, Mr. Crawford provided this office with a response to Mr. Hicks' reply letter. He indicated that he had checked with the Superintendent of the Perry County School System, John Paul Amis, who is also custodian of records, and Superintendent Amis stated there were no documents or letters on file as requested by Mr. Hicks. Addressing the records requested by Mr. Hicks, he advised:
There is on file an application from Mr. Hicks from 1987 when Mr. Hicks was actually employed by the Perry County School System and he worked for one year, 1987 - 1988 for Perry County. The Superintendent also has on file a Limited Teaching Contract signed by Mr. Hicks for the 1987 - 1988 school year. These are not documents which were requested by Mr. Hicks in his Open Records request.
Superintendent Amis did indicate there is an application on file dated July 13, 2006 from John Hicks but there are no other applications, letters of reference, etc., in the file. The Perry County School District usually discards applications and documents attached to applications after 12 months.
Superintendent Amis asked Jonathan Jett about two letters which were referenced in a 2003 letter to the attorney for Mr. Hicks and Mr. Jett indicated there must have been letters in the file at one time, but he could not remember any other specifics and those letters cannot be located. Mr. Amis assumes, if the two letters existed, they were disposed of probably sometime in 2004 but the response Mr. Jett gave to Mr. Hicks' attorney had to be sometime prior to January 1, 2005 because the letterhead had the name of three former board members who left the board of education after the November 2004 elections.
Consequently, after making multiple searches, the district cannot locate any of the specific documents requested by Mr. Hicks in his Open Records request and appeal.
KRS 61.880 sets forth the legal obligations of a public agency upon receipt of an open records request. Subsection (1) of that provision requires a public agency to respond to the requesting party within three business days of receipt of the request, notifying the party whether it will comply with his request. These requirements, as the Attorney General has often noted, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5.
Mr. Hicks indicated he sent his open records request to the Perry County School System on October 4, 2007, and, as of the date of his letter of appeal, October 15, 2007, he had received no response to his request. On October 25, 2007, the Perry County School System did respond to Mr. Hicks' October 4, 2007, request by providing him with a copy of its response to the Attorney General. This did not cure the failure to timely respond to the open records request as required by KRS 61.880(1) . A response to a letter of appeal, pursuant to 40 KAR 1:030, Section 2, should be viewed as an opportunity to supplement, and not supplant an agency's initial response or the requirement that it timely respond to an open records request. See 02-ORD-118. KRS 61.880(1) requires public agencies to respond to open records requests in writing and within three business days. The only response of record is the Perry County School System's October 25, 2007, response to the notification of the appeal. The failure to respond to the initial request was a procedural and substantive violation of the Open Records Act. 07-ORD-236.
The Perry County School System affirmatively advised Mr. Hicks that it did not have the records he was seeking. Obviously, a public agency cannot afford a requester access to records that it does not have or that do not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The agency discharged its duty under the Open Records Act by affirmatively so advising and explaining why it did not have records containing the information he was seeking. 99-ORD-150.
Moreover, the Perry County School System explained the efforts that were made to locate records responsive to Mr. Hicks' request. We believe that the search methods employed were those which could reasonably be expected to produce the records requested. 95-ORD-96. We therefore affirm the Perry County School System's denial of Mr. Hicks' request on the basis of the nonexistence of any responsive records.
In its response the Perry County School System indicated that the two requested letters which were referenced in a 2003 letter to the attorney for Mr. Hicks must have been in its files at one time, but could not be located and were probably destroyed some time in 2004 prior to 2005. The agency also advised that it usually discards applications and documents attached to applications after 12 months. The Perry County School System does not correlate its retention schedule to any records series appearing in the Records Retention Schedule - Public School District Model developed by the Kentucky Archives and Records Commission pursuant to KRS 171.530, and promulgated into regulation at 725 KAR 1:061. Applications - Persons Not Hired, Series L2025 must be retained for three years then destroyed. The agency has an obligation relative to proper records management and retention. Moreover, the fact that the two letters have been lost, misplaced, or destroyed suggests the presence of another possible management of records issue. Our review of the Public School District Model Records Retention Schedule, the pertinent portions of which are attached, indicates that Official Correspondence, Series No. L5303, 1 the Disposition Instructions provided that these must be retained by the District with no provision for destruction, that is, a permanent record; General Correspondence, Series No. L5304, 2 must be retained for two years and then destroyed; Since the letters appear to be a basis for the Perry County School System's decision to not hire Mr. Hicks in 2003, we believe they may be deemed official correspondence and not subject to destruction under Series No. L5303. Even if the letters are deemed to be general correspondence, the record before us is too indefinite to determine if they were retained for the two year period, as required by Series No. L5304.
KRS 61.8715, in pertinent part provides:
[T]o 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 . . . [KRS 61.870, et seq., the Kentucky Open Records Act, KRS 171.410 to 171.740, relating to public records management, and KRS 61.940 to 61.959, relating to strategic planning for computerized information systems.]
The General Assembly has thus recognized an "essential relationship" between the intent of the Open Records Act and statutes relating to proper records management and maintenance. KRS 61.8715. It is, however, for the Department for Libraries and Archives, and not the Attorney General, to assist the Perry County School System in determining whether it is fully discharging its duty to manage and preserve records containing "adequate and proper documentation of the organizational functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish information necessary to protect the legal and financial rights of the government and of persons directly affected by the agency's activities." KRS 171.640. Accordingly, pursuant to KRS 61.8715, to ensure that a proper records management system is in place, we have referred this matter to the Department for Libraries and Archives for further inquiry as that agency deems appropriate. KRS Chapter 171.
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 proceedings.
Footnotes
Footnotes
1 The description of OfficialCorrespondence provides:
This record series documents the major activities, functions, events and programs of school districts, including schools and in addition helps in the establishment of an administrative history. It provides a record of policy evolution and formulation, how and why decisions are made, and how these decisions impact the local government and the public at large. Official correspondence is usually created by the chief administrative officer of the school district but may be supplemented by principals of schools, administrative heads of official departments, commissions and boards and agencies within the school system.
2 The description of GeneralCorrespondence provides:
General correspondence is not crucial to the preservation of the administrative history of the school district. It is of a non-policy nature and without permanent value. It deals only with general and routine operations of the office, operations which are documented by other records maintained by the agency.