Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Revenue ("DOR") violated the Open Records Act in the disposition of Mark F. Sommer's February 5, 2010, 1 request for copies of pleadings filed in a tax case. For the reasons that follow, we find that the agency's initial response procedurally and substantively violated the Act. Furthermore, although the DOR eventually granted access to its records, the unexplained absence of the file raises some concerns about the agency's records management practices.
Mr. Sommer's February 5 letter requested copies of records identified as:
Any document or writing constituting a case pleading (and any/all attachment(s) thereto) put of public record by any party, witness, agency, tribunal or court reporter with the Kentucky Board of Tax Appeals, the Franklin Circuit Court, and/or the Kentucky Court of Appeals, in an action styled and referred to as LWD, Inc. v. Revenue Cabinet, File No. 92-R-66 (KBRA), reversed Case No. 95-CI-00162 (Franklin Cir. Ct. Div. II, Nov. 10, 1998), appeal dismissed, Case No. 1998-CA-003032 (Ky. App. Jul. 9, 1999), between the dates January 1, 1992 and August 31, 1999, inclusive.
Sarah E. Pence, Open Records Coordinator, responded on February 16, 2010, in pertinent part as follows:
The Kentucky Board of Tax Appeals is a government entity that is separate from the Department of Revenue. They are the primary custodian of the records that you have requested to inspect or copy. Therefore, your request for these records should be made directly to the Kentucky Board of Tax Appeals[.]
Mr. Sommer's appeal was received in this office on March 1, 2010. He makes reference to the DOR's records retention schedule (Schedule Date March 9, 2000; Change Date March 12, 2009), which specifies that attorney case files are to be transferred to the State Records Center three years after closure of the case, or four years for more significant cases.
In its first response to this appeal, a March 5, 2010, letter from Attorney Greg A. Jennings, the DOR explains:
Upon receipt of the open records application, Ms. Pence emailed Jennifer Antle, Records Retention Officer for the Finance and Administration Cabinet [of which the DOR is a department], on February 11, 2010, inquiring whether the requested records ? were still available since those records were approximately 11 years old. Unfortunately, Ms. Pence did not receive a response from Ms. Antle.
At that point, instead of following up, Ms. Pence proceeded to deny the request on the grounds that the Board of Tax Appeals was the "primary custodian" of the records.
Mr. Jennings recites that after this appeal was filed, Ms. Pence made another inquiry to Jennifer Antle and "learned that Ms. Antle was out on maternity leave and a substitute employee was filling her duties while she was away." A subsequent search was performed. Although Mr. Jennings believed as of March 5 that the file in question had been located in archives "[a]fter an extensive search," he states in correspondence to Mr. Sommer dated March 11, 2010, that after a review of the retrieved file "it was determined by you [Mr. Sommer] that this was not the same LWD, Inc. case file you were seeking to inspect. " He informs Mr. Sommer:
We again reviewed the attorney archive forms on this date and determined that no other LWD, Inc. file can be located in archives or on site at the DOR. We also spoke with attorney Doug Hendrix, who was the lead attorney on the LWD, Inc. file that you are seeking and he indicated that he no longer has the file.
He therefore concludes in his correspondence that the DOR is "unable to locate" the case file Mr. Sommer has requested.
Since the DOR's official response to this appeal, the March 5 letter, "maintains its position that it is not the ' official custodian of the agency's public records' ? within the framework of KRS 61.872(4) (emphasis added)," we address this argument to alleviate any misconceptions. KRS 61.872(4) states as follows:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
That provision uses the phrase " the agency's public records" (emphasis added), which makes clear that an agency cannot argue it is not the custodian of its own records. The statutory language does not authorize a public agency to deny access to public records in its possession, as the DOR did in its initial disposition of Mr. Sommer's request, based on an assertion that another agency is the "primary custodian" of those records.
As we stated in 09-ORD-107, at page 4:
The mere possession of records by the agency from which those records are requested is enough to compel that agency to make them available for public inspection or explain why they are exempt. Cf. 98-ORD-100 (discounting the concept of "casual possession").
Moreover, "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. The case pleadings in question were "public records" under the definition in KRS 61.870(2), which extends to "documentation, regardless of physical form or characteristics, which [is] prepared, owned, used, in the possession of or retained by a public agency. " (Emphasis added.) Consequently, if the DOR possessed the requested file, it was subject to the Open Records Act, and thus the DOR's initial response was substantively deficient.
Furthermore, the initial response was procedurally deficient in that the DOR failed to determine at that time whether it possessed the records. The fact that a records officer is on temporary leave does not excuse a public agency from timely compliance with the Open Records Act. Rather, in such a situation, "[i]t is incumbent on ? any public agency ? to make proper provision for the uninterrupted processing of open records requests." 01-ORD-140, p. 6.
As to the ultimate outcome of the eventual search and inspection, we find no violation of the Open Records Act itself. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The fact that a case file is missing from the archives, however, gives cause for concern about the DOR's records management practices.
In its 1994 amendments to the Kentucky Open Records Act, the General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. The loss of public records raises issues which may be appropriate for review under Chapter 171 of the Kentucky Revised Statutes. An agency's "inefficiency in its own internal record keeping system" should not be allowed "to thwart an otherwise proper open records request." Com. v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008). Accordingly, we refer this matter to the Department for Libraries and Archives 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 proceedings.
Mark F. Sommer, Esq.Sarah E. PenceGreg A. Jennings, Esq.
Footnotes
Footnotes
1 While the request bears the date of February 5, correspondence from the DOR to this office states that it was received on February 11, 2010.
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