Request By:
Thomas M. Crevar, D.C.
Karalee Oldenkamp, D.C.
Diane Fleming
Barbara Teague
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Board of Chiropractic Examiners violated the Open Records Act in the disposition of Thomas M. Crevar's December 17, 2007, request for:
1) The job classification, title, and salary for all Board employees effective June 30, 2007, and job classification, title, and salary for all Board employees effective December 1, 2007; 1
2) Budgets for the Kentucky Board of Chiropractic Examiners from 1988-2008;
3) Minutes from January 1995 -- September 26, 1996.
The Board responded to Dr. Crevar's request in a letter dated December 19, 2007, providing him with copies of the minutes and referring him to the Kentucky Personnel Cabinet to obtain employee job classifications, titles, and salaries. With reference to his request for the 1988-2008 budgets, the Board's executive director, Karalee Oldenkamp, advised that the Board was "not able to find any of these documents on file at our office," and suggested that he "submit a formal request for this information [to] the Department for Libraries and Archives . . . ." 2
For the reasons that follow, we find that the Board cannot be said to have violated the Act in the disposition of Dr. Crevar's request for budgets and employee records, insofar as it cannot produce copies of records that may have been destroyed, or were somehow otherwise misplaced, but that its apparent failure to implement an adequate program for insuring proper records retention and management constitutes a subversion of the intent of the Open Records Act. 3 Because this appeal raises significant records management issues, we have referred these issues to the Kentucky Department for Libraries and Archives.
Upon receipt of the Board's response, Dr. Crevar notified the Board that he had also contacted Ms. White, and that she confirmed the presence of the budgets and employee records in the Board's offices. Shortly thereafter, Dr. Oldenkamp provided Dr. Crevar with budget information compiled by Ms. Tabeling in a spreadsheet. 4 The Board did not respond to his comments concerning employee records. Dissatisfied with the Board's disposition of his request, Dr. Crevar initiated this appeal on January 8, 2008, asserting that he has not yet "received the information that [he] requested."
In supplemental correspondence directed to this office following commencement of Dr. Crevar's appeal, Dr. Oldenkamp elaborated on the Board's position. She explained:
Once the request was received, I attempted to locate the records within our office. The requested Board Minutes were located and copied for Dr. Crevar. When the remaining records could not be found in the appropriate files, I made several attempts to locate the information elsewhere, as noted in my December 19, 2007 response to Dr. Crevar. It was at this time, I also contacted the previous Board Administrator via email, her response enclosed. As you can see from her response, the information was most likely misfiled, and we had exhausted all locations in which she suggested we look. Instead of postponing this request of information from Dr. Crevar, I supplied him with additional avenues to pursue the remaining information. I even forwarded his request for Budgets to the GOPM Policy Analyst, Carla Tabeling, who works with our Board. She responded via email and attached the spreadsheet including the budget for the KBCE from 1988-2008 as Dr. Crevar requested, which I forwarded on to him.
As for the Job Titles and Salaries of Board employees, I had assumed that Dr. Crevar would have contacted the Personnel Department, as I suggested in my initial response to his request. Since your letter has brought to my attention that he did not contact them, I have done so in order to collect his requested information.
Dr. Oldenkamp thereafter provided this office with "information Dr. Crevar has requested which [she] composed with the help of the Personnel Department." On this basis, she reasserted that the Board had not denied Dr. Crevar's request, but that it had instead attempted to "meet" those requests "or at least provide alternate avenues for attaining [sic] the information he requires." In our view, these efforts fall short of the duties imposed on the Board by statute, and are indicative of records mismanagement.
To begin, we believe that it is incumbent on the Board to discharge its statutorily assigned duties notwithstanding the availability of responsive records elsewhere. KRS 61.872(1) states that "[a]ll public records shall be open for inspection by any person, except as otherwise provided . . . ." More specifically, KRS 61.880(1) states that "[e]ach public agency upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision." The term "public record" is defined as "documentation regardless of physical form or characteristics, which [is] prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Nowhere in these provisions do we find any language which relieves the agency of these clearly established duties if the records are in the custody of another agency from which they could be obtained.
Rather, in construing these provisions the Attorney General has recognized on several occasions that:
there is no specific exception to the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from that other public agency.
OAG 91-21, p. 4 (holding that the City of Owensboro improperly denied requester access to records in its custody although those records were "the responsibility of the State and County"); OAG 90-71 (holding that the Kentucky Board of Pharmacy improperly refused to release salary records of its employees on the grounds that the records could more appropriately be obtained through the Department of Personnel); 96-ORD-7 (holding that the Department of Corrections improperly referred inmate to the institutional records office for a copy of his resident record card when it too had custody of the card) ; and 98-ORD-17 (holding that Jefferson County Sheriff's denial of request for audits of his office would be improper if his office maintained a copy of the audits in addition to copies of the audits in the custody of the Revenue Cabinet). As a public agency in whose possession the requested records should reside, the Board is obligated to discharge its duties under KRS 61.880(1) by releasing the requested records within three working days, or denying the requester access on the basis of one or more of the exceptions found at KRS 61.878(1)(a) through (n), notwithstanding the fact that those records are available, and could be obtained, from another agency. To the extent that the Board improperly attempted to redirect Dr. Crevar's request to the Department for Libraries and Archives and the Personnel Cabinet, its disposition of that request violated KRS 61.880(1). 5
The basis for nondisclosure of employee records and budgets that the Board advanced, specifically, that those records could not be located and must have been misfiled, is wholly inadequate. 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, [1994,] 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.
The records at issue in this appeal fall within the parameters of Record Series P0001, Personnel Folder, and Record Series F0002, Operating Budget, of the General Schedule for State Agencies . 6 Copies of these schedules are attached hereto. The retention and disposition instructions for Personnel Folders require that the records be retained on agency premises indefinitely but that they not be destroyed until five years after termination of employment in the agency. The retention and disposition instructions for Operating Budgets require that the records be permanently retained in the agency. Although it is unclear whether the records were misfiled or destroyed, the Board's inability to locate them is indicative of records mismanagement and may be appropriate for review by the staff of the Department for Libraries and Archives.
The Attorney General has long recognized that a public agency cannot afford a requester access to records which do not exist or have been destroyed. See, e.g., OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203. We have also recognized that it is not our duty to investigate in order to locate documents which do not exist or have been destroyed. OAG 86-35. As we observed in OAG 86-35, at page 5, "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." However, since July 15, 1994, when the amendments to the Open Records Act took effect, we have applied a higher standard of review relative to denials based on the nonexistence, or here the 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 Board offers no explanation for its inability to locate the requested records.
While we do not find, as a matter of law, that the Board violated the Open Records Act in denying Dr. Crevar's request for records which it was unable to locate, we do find that the Board subverted the intent of the Act through its apparent failure to establish effective controls over the creation, maintenance, and use of the records, thereby frustrating Dr. Crevar's right of access. Ultimately, we cannot afford him the relief he seeks, namely access to the Board's budgets and employee records. We have, however, referred this matter to the Department for Libraries and Archives for additional inquiry as that agency deems warranted. Accord, 06-ORD-409; 05-ORD-141; 01-ORD-176; 00-ORD-46; 98-ORD-200; 94-ORD-142.
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 Although this was technically a request for information, as opposed to a request for an existing public record, the Board did not object to the request on this basis.
2 Dr. Oldenkamp noted that she contacted Beverly White, the Board's former records custodian, and that Ms. White suggested "several locations in which to look, none of which turned up any of [the] requested documents." Additionally, she indicated that the Board's policy analyst, Carla Tabeling, "should be able to print the fiscal years 2006-2008 budget from her system." Dr. Oldenkamp indicated that she would "send the information" to Dr. Crevar" "once [Ms. Tabeling] returned to the office."
3 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.
4 Thatspreadsheet is captioned "Board of Chiropractic Examiners Budget and Expenditure Information, 1988-2008," and consists of two columns, one identifying fiscal year and the second identifying expenditures. For example:198857,200
5 While the Board exceeded its statutorily required duties in creating a spreadsheet in which minimal budgetary information was compiled, that information was not entirely responsive to Dr. Crevar's request, and did not, in any event, represent an adequate substitute for the budgets themselves.
6 These schedules have been promulgated into regulation at KAR 725 KAR 1:061.