Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Hindman Elementary School and Knott County School District violated the Open Records Act in responding to John Hicks' December 22, 2009, request for records relating to his "application for employment with Hindman Elementary and Knott Co[unty] School Board in 02-03 school year. " Because the record on appeal contains insufficient proof of an adequate search, we cannot affirm Hindman Elementary's or Knott County's denials based on the apparent nonexistence of responsive records. It is incumbent on Hindman Elementary and Knott County to conduct a search consistent with the parameters set forth below to insure that Mr. Hicks is afforded full access to responsive records.
In a handwritten letter dated December 22, Mr. Hicks requested access to "the reference check that was conducted by [Hindman Elementary's] site based decision making council and Harold Combs to the Floyd County School Board [of Education] in relation to [Mr. Hicks'] 02 application for employment with Hindman Elementary and Knott County School Board [of Education]." Additionally, Mr. Hindman requested records "show[ing] the communication between Harold Combs and Hindman Elementary in making hiring decisions for the 02-03 school year" and records "show[ing] . . . . what [Harold Combs] said about [Mr. Hicks'] reference check . . . [as well as what he said to Hindman Elementary] in relation to hiring teachers and [him]." Mr. Hicks acknowledged receipt of some responsive records but asserted that because Mr. Combs "communicated to [Mr. Hicks] in 02-03 school year that [Mr. Combs] did a reference check to the Floyd County School Board to see if [the Board] would recommend [Mr. Hicks] for employment," and because Hindman Elementary is itself a public agency, separate from the Knott County School District, whose records may not have been adequately searched, the Act mandates "a broader search to see if there are any additional records." He emphasized that as a former public agency employee he is entitled, pursuant to KRS 61.878(3), to inspect and copy any record that relates to him. Having received no response to his request, Mr. Hicks initiated this open records appeal.
In correspondence directed to this office, Ronald G. Combs responded to Mr. Hicks' appeal on behalf of the Knott County School District and Hindman Elementary. He characterized the open records request that resulted in this appeal, "which was a request to Wes Halbert, the Principal of Hindman Elementary School, dated December 22, 2009," as "one of three separate but related open records requests received from Mr. Hicks." With reference to this request, he advised:
The next request from Mr. Hicks, a copy of which is attached as Exhibit 3 hereto, is the one to Mr. Halbert dated December 22, 2009, that resulted in this appeal. It requests 'a record regarding my application for employment with Hindman Elementary and Knott County School Board in 02-03 school year. ' A diligent search of the records located at the Central Office and Hindman Elementary yielded no records meeting the description of the records requested by Mr. Hicks in his December 22, 2009, letter.
The referenced open records request, attached as Exhibit 3, is dated December 31, 2009. Although it does not mirror the December 22, 2009, request "that resulted in this appeal," it is substantially the same. 1
Unable to resolve Mr. Hicks' appeal on this record, the Attorney General requested additional documentation from Hindman Elementary and Knott County, pursuant to KRS 61.880(2)(c), in a letter dated March 2, 2010. Specifically, we asked that they respond, jointly or separately, to the following questions on or before March 8, 2010:
1. Please describe the search methods employed by the Board and the School, separately, to locate responsive records. Please note that the request Mr. Combs submitted to this office, and marked Exhibit 3, is dated December 31, 2009, and does not mirror the December 22, 2009, request, enclosed herewith, that is the subject of this appeal.
2. Please indicate whether Hindman Elementary School maintains, as a personnel folder distinct from the folder maintained by the school district, "Employee Personnel Folders - Principal's Copy" as described in Records Series L4466 of the Records Retention Schedule - Public School District Model, established by the Archives and Records Commission and promulgated into regulation at 725 KAR 1:061. If so, please describe the contents of this file.
3. Pursuant to KRS 61.878(3), entitling a current and former public employee and an applicant for public employment to copies of all records that "relate to him" regardless of whether the records are otherwise exempt, has Mr. Hicks received copies of all requested records in the possession of Hindman Elementary School or the Knott County Board of Education to which he requested access and that relate to him? If not, what records have not been released to him and on what basis?
We received no written response to these inquires. Accordingly, we cannot conclusively determine that Hindman Elementary or Knott County fully discharged their duty to conduct an adequate search for responsive records.
We begin by focusing on Hindman Elementary's and Knott County's apparent failure to comply with the procedural requirements of the Open Records Act. While Mr. Combs documents agency compliance with KRS 61.880(1) in relation to Mr. Hicks' March 25, 2008, and January 7, 2010, records requests, he provides no such documentation in relation to the December 22, 2009, request that resulted in this appeal, noting only that a diligent search for responsive records yielded no results. Having properly responded to the earlier open records request submitted by Mr. Hicks, the agencies apparently understand their obligations under KRS 61.880(1) 2 but failed to discharge them in relation to Mr. Hicks' December 22 request. The fact that Hindman Elementary and Knott County conducted unproductive searches for records responsive to that request did not relieve them of their statutory duties under KRS 61.880(1). Because Hindman Elementary and Knott County failed to issue a timely written response to Mr. Hicks' December 22 request, we find that they violated KRS 61.880(1).
Because Hindman Elementary and Knott County did not respond to this office's KRS 61.880(2)(c) inquiry, we cannot affirm the denial of Mr. Hicks' request that was postulated on the nonexistence of responsive records. Simply stated, it is impossible to know whether the agencies conducted an adequate search for those records. Kentucky courts have recently determined that "before a complaining party is entitled to a hearing [to disprove the agency's denial of the existence of the requested records], he or she must make a prima facie showing that such records do exist,"
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005), and this office has followed suit in the absence of evidence that responsive records exist. See, e.g., 07-ORD-188 (Attorney General is obligated, under the rule announced in Bowling, to affirm Environmental and Public Protection Cabinet's denial of request for records based on their nonexistence where requester makes an unsubstantiated claim that the records exist). Here, Mr. Hicks presents unrefuted evidence that records responsive to his request should exist, and records management requirements lend support to his argument. That evidence consists of Mr. Hicks' unrefuted statement that he engaged in a conversation with Mr. Combs during the 2002-2003 school year in which Mr. Combs stated that he conducted a reference check on Mr. Hicks with the Floyd County School Board. This, coupled with the fact that Hindman Elementary may maintain records that are not maintained at the District level, as evidenced by the Records Retention Schedule - Public School District Model, suggest the necessity of a records search broader than the search that was apparently performed.
In 95-ORD-96, this office was asked to determine whether an agency's search for public records was adequate. There, we adopted a standard by which to measure the adequacy of the agency's search. At page 7 of that decision, we observed:
[T]he Open Records Act does not require an agency to conduct "an exhaustive exhumation of records," Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D. N.Y. 1983). It is, however, incumbent on an agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, above at 775.
(Emphasis added.)
Although Hindman Elementary and Knott County were afforded the opportunity to describe their recordkeeping systems and the search methods they employed in conducting a search for records responsive to Mr. Hicks' request, they did not avail themselves of the opportunity. We therefore cannot ascertain whether the agencies conducted searches "using methods which [could] reasonably be expected to produce the records requested." For example, in conducting their search for the reported reference check, did these agencies review the Employee Personnel Folder - Principal's Copy, Records Series L4466, maintained at the elementary school level, as well as the Personnel File, Record Series L5343, maintained at the district level? In conducting their search for responsive communications concerning Mr. Hicks' application for employment that were transmitted electronically, did the agencies search the archive files, message files, text files, or html files of the employees who could have reasonably been expected to maintain such communications? Accord, 06-ORD-022.
The record on appeal is devoid of proof of an adequate search beyond a bare assertion that the search was "diligent." This is not sufficient to discharge the agency's obligations. Compare 08-ORD-004 (Perry County School District acknowledges deficiencies in records management practice resulting in the nonexistence through loss or destruction of records responsive to Mr. Hicks' request, and matter is forwarded to Kentucky Department for Libraries and Archives for inquiry and instruction as KDLA deems appropriate). Because nothing in the record on appeal suggests improper records management practices, we do not believe this matter warrants referral to KDLA. Nevertheless, we find that because Hindman Elementary and Knott County failed to produce proof of an adequate search, after we requested that they do so under authority of KRS 61.880(2)(c), we cannot affirm their denial of Mr. Hicks' December 22, 2009, request based on their denial of the records' existence. The agencies are assigned the burden of proof at KRS 61.880(2)(c) and we believe, as noted above, that it is incumbent on Hindman Elementary and Knott County to conduct searches for records maintained at the school and district level "using methods which can reasonably be expected to produce the records requested," to describe for Mr. Hicks, in writing, the search methods employed in their searches, and to afford him access to any records located in their searches. 3 If no additional records are located, it is incumbent on the agencies to describe the search methods employed and notify him that their search yielded no results. Until they have done so, their duties under the Open Records Act are not fully discharged.
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 HicksCarole D. CombsKimberly KingRonald G. Combs
Footnotes
Footnotes
1 Neither Hindman Elementary nor Knott County question the disparity between these requests.
2 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.
3 Because Mr. Hicks is a former public agency employee, he is entitled to inspect and/or copy any record that "relates to him" pursuant to KRS 61.878(3). See, 97-ORD-37 (former public employees enjoy an equal right of access to records relating to them as current public employees or applicants for public employment under KRS 61.878(3)).