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 Knox County School District subverted the intent of the Open Records Act, within the meaning of KRS 61.880(4), in partially denying that portion of Bryan Scott Peters' request to inspect his personnel file consisting of his 2003-2004 and 2004-2005 teacher evaluations. For the reasons that follow, we find that the District subverted the intent of the Act in denying that portion of Mr. Peters' request on the basis that no responsive records could be located, and that its inability or failure to provide an explanation for the apparent loss or destruction of evaluations that are required to be conducted annually by state law 1 and district policy 2 and retained for five years after termination of employments by state regulation 3 suggests deficiencies in its records management practices. We have therefore referred this matter to the Kentucky Department for Libraries and Archives for further inquiry as that agency deems warranted.
In his letter of appeal, Mr. Peters acknowledged that he reviewed his personnel file with Knox County Superintendent Walter T. Hulett on July 23, 2008, and that he was afforded access to his 2000-2001, 2001-2002, and 2002-2003 evaluations relating to his performance as an Instructional Assistant II. 4 Continuing, he observed:
Mr. Hulett attempted to locate the evaluations for the two years of Certified Teaching Service I provided to the Knox County Schools from 2003-2005 without locating them. In addition to my personnel file, Mr. Hulett also attempted to locate any additional files throughout various locations in the building, but was unsuccessful. After over an hour of searching, Mr. Hulett told me the performance evaluations requested could not be provided to me. He offered no further explanation and told me there was nothing more that he could do to assist me.
Shortly after this meeting, Mr. Peters initiated this open records appeal.
By letter dated August 8, 2008, Timothy Crawford responded to Mr. Peters' appeal on behalf of the Knox County School District. Mr. Crawford restated Mr. Peters' narrative of events, noting that Superintendent Hulett "asked other Central Office Administrators if they were aware of any teacher evaluation documents for Mr. Peters which related to the 2003-2004 and 2004-2005 school years and no other administrator was aware of any such documents." He concluded, "Superintendent Hulett told Mr. Peters no such documents existed and no such documents were located." 5 While it is well-established that a public agency cannot produce for inspection or copying records which do not exist or cannot be located, where, as here, creation of those records was mandated by statute and district policy, and the retention period for those records had not expired, our analysis must proceed.
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.
94-ORD-121, p. 8-10; cited in 08-ORD-030, p. 6.
Our research, coupled with records furnished to this office by Mr. Peters, confirms that the certified employee evaluation program for a school district must include, among other things, formative and summative evaluations, the latter of which must "occur at the end of an evaluation cycle" and "include . . . a written evaluation report." KRS 156.557(3)(b)2.a. and b. 404 KAR 3:345 Section 4(2)(f) provides that "[e]valuations with multiple observations shall occur annually for each nontenured certified employee." Additionally, 704 KAR 3:345 Section 4(2)(j) provides that the "evaluation of a certified employee below the level of the district superintendent shall be in writing on an evaluation form developed pursuant to subsection (1) of this section and become a part of the official personnel record. "
It is our understanding that Mr. Peters was a nontenured certified employee of the district during the 2003-2004 and 2004-2005 school years. As such he should have been evaluated annually, in writing, on a form developed per the regulation, and those evaluations should have become a part of his official personnel record. The District belatedly asserted that no records exist that are responsive to this portion of Mr. Peters' request, but did not assert that they never existed, or, alternatively, that they never existed and explain why the statutory mandate was ignored. The evaluations at issue in this appeal fall within the parameters of Records Series L5343, Records Retention Schedule: Public School District Model, as part of Mr. Peters personnel file. The retention and disposition instructions for this records series require the District to retain the personnel file on agency premises indefinitely, but not destroy the evaluations contained in the file until five years after termination of employment. Although it is unclear whether the evaluations were misfiled or destroyed, the District'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.
As noted, 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 apparent 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 District offers no explanation for its inability to locate the requested records.
While we do not find, as a matter of law, that the District violated the Open Records Act in denying Mr. Peters' request for records which it was unable to locate, we do find that the District 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 Mr. Peters' right of access. Ultimately, we cannot afford him the relief he seeks, namely copies of his evaluations. 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.
Distributed to:
Bryan Scott PetersWalter T. HulettTimothy Crawford
Footnotes
Footnotes
1 KRS 156.557; 704 KAR 3:345.
2 Knox County Schools Certified Personnel Evaluation Plan Assurances Certified School Personnel Evaluation Plan, p. 1.
3 725 KAR 1:061, Section 2(c) 13, incorporating Records Retention Schedule - Public School District Model Series No. L5343, Personnel File.
4 Mr. Peters indicated that the position of Instructional Assistant II is a classified position.
5 Mr. Crawford amplified on an unrelated issue concerning Mr. Peters' email usage. Because this issue has no bearing on the question presented in this appeal, we do not address it.