Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Letcher County Board of Education violated the Kentucky Open Records Act in the disposition of John Hicks' request for "a record to show as to the reasons why the Letcher County School [D]istrict hired Fannie Boggs over me, a certified teacher, on an emergency certificate to teach Learning and behavior disorders - (Special Education) for this 08-09 school year while I had an application on file" (sic) as well as "a record to show what the interview back in 06 was actually about and how I got a score of 65%." Although the Board admittedly failed to issue a written response within three business days, in accordance with KRS 61.880(1), the Board ultimately provided Mr. Hicks with a copy of any existing records which are potentially responsive to his request, and has explained the lack of additional records in responding to his appeal. The Board is not required to produce nonexistent records or those which it does not possess, nor must a public agency "prove a negative" under
Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-41 (2005); likewise, this office is not empowered to resolve a dispute concerning a disparity between the records being sought and those provided. Although this office finds no substantive violation, the record on appeal suggests a possible records management issue which necessitates referral of this matter to the Kentucky Department for Libraries and Archives consistent with KRS 61.8715.
Upon receiving notification of Mr. Hicks' appeal from this office, Darrell Hall, counsel for the Board, responded on behalf of his client, initially acknowledging that the Board "was late in responding to Mr. Hicks's [r]equest dated May 21, 2009, and May 28, 2009, to Kenneth Cornett, who is not the Board's official custodian of records." According to Mr. Hall, this "delay was due to the fact that Mr. Cornett has been out of his office for a few days and so has Superintendent Craft." 1 Having acknowledged this procedural error, Mr. Hall noted that Mr. Hicks "has been provided with a copy of the Log of Central Office Screening of [C]andidates," a copy of which is attached to both Mr. Hicks' appeal and Mr. Hall's response, and "which indicates that Mr. Hicks had a score of 65% while the other candidates scores were in the eighties and nineties." With regard to Mr. Hicks' request for a record outlining the reasons why the Board hired Fannie Boggs instead of him, Mr. Hall advised "there is no document" containing such information "which the Board can provide." In response to Mr. Hicks' request for a record explaining "what the interview back in 2006 was actually about" and why he received a score of 65%, the Board provided him with a blank copy of "the Applicant Rating Sheets for Special Education Teachers and Teacher Interview Questions." Mr. Hall explained that sheets for applicants "are destroyed after the scores are averaged and posted on the Log referred to [above]."
Because the Board cannot produce for inspection or copying nonexistent records, and has provided Mr. Hicks with a copy of any existing records which are potentially responsive to his request, the Attorney General has no basis upon which to find a violation of the Act; however, the applicable Disposition Instructions found in the Public School District Model Records Retention Schedule mandate retention of the "Application Screening Profile," identified as Series No. L3117, for three years before destruction. Although the 2003 records would, or should have been properly destroyed prior to Mr. Hicks' request(s), even if the Board acted in compliance, its response suggests a possible records management and retention issue, given that records falling within this Records Series were apparently destroyed shortly after the scores were posted, rather than after the specified retention period.
As the Attorney General has consistently recognized, a public agency cannot afford a requester access to nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. To clarify, the right to inspect attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. A public agency's response 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 indicating that no such records exist (or are in the possession of the agency) as the Board ultimately asserted here. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 99-ORD-98. Under circumstances like those presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2; 04-ORD-205; 94-ORD-140. Rather, KRS 61.880(2)(a) narrowly defines our function relative to disputes arising under the Open Records Act.
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records, 2 the Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). 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 open 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 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); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 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 subject investigation not in sheriff's custody because sheriff did not conduct the investigation). When, as in this case, a public agency denies that any such records exist, and the record on appeal does not refute that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36.
In responding to Mr. Hicks' appeal, the Board advised him "there is no document" explaining the reasons why Fannie Boggs was hired instead of him "which the Board can provide [presumably because no such record was ever created or has been destroyed] ." As for a record explaining "what the interview back in 2006 was actually about" and why he received a score of 65%, the Board explained that any records containing such information would have been destroyed after the scores were posted. The Board now finds itself in the untenable position of having to "prove a negative" in order to conclusively refute Mr. Hicks' claim that such records exist. Addressing this dilemma, in
Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (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.
For these reasons, the Court determined "that before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist." 3 In a series of decisions issued since Bowling, this office has been obliged to affirm public agency denials of requests based on the nonexistence of responsive records in the absence of a prima facie showing that the records sought did, in fact, exist. See, e.g., 07-ORD-190; 07-ORD-188; 06-ORD-223; 06-ORD-042. Because the instant appeal presents no reason to depart from governing precedents, the same result necessarily follows here.
In our view, the analysis contained in 07-ORD-188 and 07-ORD-190 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. In the absence of the requisite prima facie showing, this office must affirm the Board's ultimate disposition of Mr. Hicks' request in accordance with
Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), and prior decisions of this office such as 07-ORD-188 and 07-ORD-190. To hold otherwise would result in the Board "essentially hav[ing] to prove a negative" in order to refute a claim that such records exist. 07-ORD-190, p. 7. As the Attorney General has long recognized, this office cannot "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office" under the Act. OAG 89-81, p. 3. Rather, the Attorney General has expressly recognized that "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are generally not capable of resolution under the Act." 05-ORD-236, p. 3 (reporter questioned the validity of invoices produced in response to request, and the Attorney General advised that the relief sought was unavailable under the Act). See also 05-ORD-008 (questions concerning the value of information contained in records produced for public inspection are not justiciable in Open Records appeal). Nevertheless, the intent of the Open Records Act has been statutorily linked to the intent of KRS Chapter 171, as previously mentioned.
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. . . ." 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.
Given the statutorily recognized interrelationship between records management and records access, the evidence presented on appeal raises an issue regarding the records management practices of the agency insofar as the destruction of the Applicant Rating Sheets and completed Interview Questions, which presumably contained the information being sought, was apparently premature. To satisfy its burden of proof under KRS 61.880(2)(c), a public agency must explain by what authority the records were destroyed. Loss or destruction of a public record creates a rebuttable presumption of records mismanagement. Although the record is devoid of any objective basis to suggest bad faith on the part of the Board, and the records would not exist in this case regardless of whether the Board acted in compliance with relevant disposition instructions, the agency has not attempted to rebut this presumption here.
Pursuant to KRS 171.420, the State Archives and Records Commission is authorized to "review and approve schedules for retention and destruction of records submitted by state and local agencies. " Additionally, the Commission is charged with the duty to "establish standards for the selective retention of records of continuing value," and the Department for Libraries and Archives with the duty to "assist state and local agencies in applying such standards to records in their custody. " KRS 171.530. Of particular significance on the facts presented, the Commission exercised this authority in creating the Public School District Model Schedule, developed pursuant to KRS 171.530 and promulgated into regulation at 725 KAR 1:061, the Personnel Section of which contains, among other potentially relevant series, 4 the Application Screening Profile, 5 identified as Series No. L3117, the retention period for which is three years with Disposition Instructions to "Destroy" when that period has ended. Although the Board could have properly destroyed the responsive Sheets and Questions from Mr. Hicks' interview in February 2003, as of February 2006, and has not committed any substantive violation, the record on appeal indicates that said records were destroyed after the scores were "averaged and posted" on the Log in accordance with agency protocol. Because the Board cited no authority for this policy, and the records were prematurely (if otherwise properly) destroyed, the Attorney General is obliged to refer this matter to the Kentucky Department for Libraries and Archives, consistent with KRS 61.8715, 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.
John HicksTimothy A. ParkerAnna CraftDarrell HallBarbara Teague
Footnotes
Footnotes
1 In failing to provide Mr. Hicks with a written response within three business days, the Board admittedly violated the mandatory terms of KRS 61.880(1); however, the delay was partially attributable to Mr. Hicks' failure to comply with KRS 61.872(2) by submitting his written request to the Board's official custodian of records. Because the Board has acknowledged this procedural error, the record is devoid of evidence to suggest bad faith, and the law in this area is well-established, this office will not belabor the point other than to remind the Board that "[n]either the press of business nor the absence of the official custodian justifies a delay in providing access to public records. " 05-ORD-064, p. 6 (copy attached).
2 See KRS 61.8715.
3 Black's Law Dictionary, 1071 (5th ed. 1979), defines prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."
4 For example, Series No. L5273, "Hiring Procedures File (May include name of person applying, address, social security #, previous employer, test scores, and hiring information. Documents used in reporting to the EEOC)," a "Confidential Record," and Series No. L3118, "Applicants Recommended for Employment (Search committee's recommendations report to the Superintendent of candidates for employment)," a "Vital Record," might have been relevant. Any such records could have been properly destroyed by the date of Mr. Hicks' request. Series L3117 is also characterized as "Confidential."
5 The "Record Description and Analysis" for Series No. L3117 identifies the function and use as follows:
This series documents an individual job interview committee member's impression of the job candidate. The profile is completed on each employee or new applicant being interviewed by a job interview committee. Members of the committee ask questions of the candidate and score the candidate. The results are used to assist in determining the best candidate for the job opening. The series is generally placed in a folder labeled Interview Folder.