09-ORD-150 | KOGC

Opinion

Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General

Open Records Decision

At issue in this appeal is whether the Pulaski County Judge Executive violated the Kentucky Open Records Act in partially denying Bill Lippert's request for "specific items from the personnel file of Dog Warden Steve Cooke," including "any documents relating to Mr. Cooke's job performance at the County Animal Shelter," and in particular, "any complaints, job evaluations, commendations, reprimands, etc." Because no reprimands exist, and the Judge Executive affirmatively indicated as much to Mr. Lippert in a timely written response, the denial of his request is affirmed in that regard; a public agency is not expected to produce nonexistent records nor must a public agency "prove a negative" in order to refute a claim that certain records exist under Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005). Although the Judge Executive violated KRS 61.880(1) in failing to cite the applicable statutory exception and briefly explain how it applies, relying on decisions of this office which predate Cape Publications v. City of Louisville, Ky. App., 191 S.W.3d 10 (2006), the controlling precedent, in denying access to the requested job evaluation, this office must nevertheless affirm the agency's denial of Mr. Lippert's request for this record on the basis of KRS 61.878(1)(a) in the absence of any evidence to establish a superior public interest in disclosure. In referring Mr. Lippert to the Pulaski County Attorney with regard to any complaints and commendations, the existence of which he neither confirmed nor denied, the Judge Executive failed to fully discharge his duties.

In his request dated July 27, 2009, Mr. Lippert stated his belief that "taxpayers of Pulaski County, who are paying the salaries of all county employees, should be able to know how their performance is being evaluated, and whether they are performing satisfactorily." By letter dated July 31, 2009, Barty Bullock, Pulaski County Judge Executive, advised Mr. Lippert that "[p]er KRS 61.878 and the Attorney General's [H]andbook on open records laws you would be able to access reprimands which there are none [sic]." Citing KRS 61.878, but no specific exception, and generally referencing the "Handbook" again, the Judge Executive further advised Mr. Lippert that he "would not be able to access any job evaluations." Noting that the Open Records Act "does not specifically address complaints and commendations, " the Judge Executive asked Mr. Lippert to "please address these issues with the Pulaski County Attorney's Office." By letter dated August 8, 2009, Mr. Lippert initiated this appeal, emphasizing that he "specifically excluded" from his request "any documents that would be of a personal nature, so as to be in compliance with KRS 61.878(1)(a)."

Upon receiving notification of Mr. Lippert's appeal from this office, William M. Thompson, Pulaski County Attorney, responded on behalf of the Judge Executive. Mr. Thompson initially reiterated that "Mr. Lippert was told that there were no reprimands. " Citing a long line of prior Open Records decisions issued between 1977 and 2002, and enclosing a copy of the relevant page from the referenced Handbook, Mr. Thompson noted that Mr. Lippert was "denied access to job evaluations." With regard to complaints and commendations, Mr. Thompson clarified that "Mr. Lippert was not denied these but was referred to contact the undersigned for clarification, of which he did not do [sic]." In sum, Mr. Thompson advised that "[o]f his four (4) requests [Mr. Lippert] was given [one], denied [one], and told where to get access to the other two." 1 Although the Judge Executive is not required, or able, for that matter, to produce nonexistent reprimands, both his initial response and the supplemental response provided on his behalf otherwise lacked the specificity envisioned by KRS 61.880(1); however, the withholding of the requested evaluation was justified under existing law applying KRS 61.878(1)(a) in this context.

As the Attorney General has consistently recognized, a public agency cannot afford a requester access to nonexistent records. 07-ORD-190, p. 6; 06-ORD-040. 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 Judge Executive has twice asserted here in addressing Mr. Lippert's request for any reprimands. On many occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5. 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. Rather, KRS 61.880(2)(a) narrowly defines our scope of review.

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 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). When, as in this case, a public agency denies that any responsive documents exist within its custody or control, and, more precisely, maintains that none were created, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 02-ORD-118; 00-ORD-83.

In responding to Mr. Lippert's request and his appeal, the Judge Executive affirmatively indicated that no reprimands exist. The Judge Executive now finds himself in the position of having to "prove a negative" in order to conclusively refute a claim that such records exist. Addressing this dilemma, in Bowling, 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 upon the nonexistence of responsive documents in the absence of a prima facie showing that documents being sought did, in fact, exist in the possession of the agency. See, e.g., 06-ORD-042; 07-ORD-188; 07-ORD-190; 08-ORD-189. 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, the Judge Executive's denial must be upheld as to reprimands in accordance with Bowling and prior decisions of this office. To hold otherwise would result in the Judge Executive "essentially hav[ing] to prove a negative" in order to refute any unsubstantiated claim. 07-ORD-190, p. 7. However, the agency's response was otherwise procedurally deficient.

As a public agency, the Judge Executive himself is obligated to comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access. 4 More specifically, KRS 61.880(1) dictates the procedure that every public agency must follow in responding to requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides:

Each 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. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (Emphasis added).

In construing the mandatory language of this provision, the Kentucky Court of Appeals observed:

The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.

Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-208.

By its express terms, KRS 61.880(1) requires public agencies to issue a written response within three business days of receiving a request; said response must also be "detailed and particular." In general, public agencies cannot postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d, 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act underscored by the mandatory response time of KRS 61.880(1) . Contrary to the Judge Executive's apparent belief, the Act "contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply." 01-ORD-140, pp. 3-4. Likewise, KRS 61.880(1) does not permit a public agency to delay access by referring a requester to another public agency, which does not possess the records, for a determination as to whether the records exist and/or can properly be withheld (as opposed to consulting with legal counsel prior to formulating a timely response, which is entirely permissible). 5 Although the burden imposed on the agency to respond in this manner within three working days is not infrequently an onerous one, the only exceptions to this general rule are codified at KRS 61.872(4) and (5), neither of which the Judge Executive invoked here. 02-ORD-165, p. 3. See 01-ORD-140, pp. 3-7. Failing to issue a "detailed and particular" written response in a timely fashion constitutes a clear violation of KRS 61.880(1); strict compliance is a duty owed to the public just like any other. 03-ORD-067, p. 2, citing 93-ORD-125, p. 5.

Also lacking from the responses provided were both any reference to KRS 61.878(1)(a), the specific exception upon which the Judge Executive implicitly relied in denying access to the requested evaluation, and the requisite brief explanation of how that exception applied. As the Attorney General has repeatedly observed in applying KRS 61.880(1):

Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [that does not apply here] 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. . . .

00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2. Nor does generally referring to unspecified sections of the Handbook issued by this office without further explanation. In failing to cite KRS 61.878(1)(a) and explain how it applied to the requested evaluation, and in directing Mr. Lippert to contact the County Attorney relative to complaints or commendations, instead of providing a complete response himself, the Judge Executive violated the Act from a procedural standpoint.

To date, the Judge Executive has failed to provide a sufficiently detailed response affirmatively indicating whether he possesses any responsive complaints or commendations and specifying which of those records, if any, to which access is being denied; the Judge Executive has therefore necessarily failed to satisfy his burden of proof to that extent. Although the County Attorney is correct in asserting that Mr. Lippert was not literally denied access to such records, the fact remains that neither he nor the Judge Executive has ever confirmed or denied their existence or cited a statutory basis for withholding some or all of any existing records which are responsive. If the Judge Executive does not have custody or control of any records identified in the request, he "shall notify [Mr. Lippert] and shall furnish the name and location of the official custodian of the agency's public records" in accordance with KRS 61.872(4). Upon receipt of the copying fee and postage, the Judge Executive should provide Mr. Lippert with a copy of any existing nonexempt records which are responsive in accordance with KRS 61.874(1). To avoid future violations, the Judge Executive should be guided by the longstanding principle that the procedural requirements of the Open Records Act "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.

In light of this determination, the remaining question is whether the Judge Executive violated the Act in denying Mr. Lippert's request for the Dog Warden's job performance evaluation(s). Although the Dog Warden is presumably the head of his agency, the County Animal Shelter, that fact is no longer dispositive standing alone. As previously indicated, Cape Publications v. City of Louisville (involving a denial of access to performance evaluations of employees of the Louisville and Jefferson County Parks Department who had been accused of criminal wrongdoing in the course of their duties) is now the controlling precedent on the issue of access to public employee performance evaluations. Citing the "case-by-case analysis required by the outstanding law on the Open Records Act, " 6 the Court in Cape Publications concluded that "[a] bright-line rule completely permitting or completely excluding from disclosure public employees' performance evaluations is at odds with existing law[.]" Id. at 14. Accordingly, this office is not permitted to focus exclusively on the rank of the employee whose evaluation has been requested in determining whether it was properly withheld, the approach expressly rejected by the Court in Cape Publications, but instead must consider the extent to which disclosure "would shed light on the operation of the public agency" while avoiding embarrassment to the subject of the evaluation caused by release of "truly personal information" the disclosure of which "would serve no public interest. " Id. at 14.

In our view, the reasoning found in 07-ORD-125 (involving a request for the performance evaluation of a school principal) is equally persuasive on the limited facts presented. Noting that the position of the employee whose evaluation was at issue was not dispositive in light of Cape Publications, the Attorney General expressly rejected the position that disclosure was justified on the basis of KRS 61.878(1)(a) for the following reasons:

The record on appeal is devoid of any proof that the subject principal committed a crime or engaged in misconduct resulting in forfeiture of his privacy interests, or that he supervised a person who committed a crime or engaged in misconduct, thus elevating the public's right to scrutinize how he was evaluated in his supervisory role. No facts are presented that would support a claim of a superior public interest in the principal's [or, in this case, Dog Warden's] evaluation that would override his long-recognized privacy interest in that record. Accord, 07-ORD-123. We find no error in the Board's [Judge Executive's] decision to withhold this particular record(s).

Simply put, this appeal presents no reason to depart from 07-ORD-125; a copy of that decision is attached hereto and incorporated by reference. "[I]in the absence of any specific facts indicative of a public interest in disclosure of the requested performance evaluation that outweighs the privacy interest of the individual in his evaluation," this office must affirm the Judge Executive's denial of Mr. Lippert's request in this regard. Compare 09-ORD-113 (copy attached)(holding that Kentucky Community & Technical College System violated Act in redacting evaluation of President of Owensboro CTCS given the facts presented, "specifically confusion surrounding the decision to transfer" her to "work on special projects" and the substantiated public interest in knowing why she was removed from her position). 7

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.

Bill LippertBarty BullockWilliam M. Thompson

Footnotes

Footnotes

1 Contrary to this assertion, the record on appeal contains no evidence that Mr. Lippert was provided with any responsive documents; rather, no reprimands existed, access to the evaluation(s) was denied, and it remains unclear whether any complaints or commendations exist.