Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in denying Quincy Taylor's May 9, 2010, request for a "copy of the May 3, 2010, letter Quincy Taylor # 210512 mailed to Sgt. Vic Hubbuch, Ky. State Police, Post # 5, 160 Citation Lane, Campellsburg, Ky. 40011, RE: RCC Policy Number for Dental Plates; and Sgt. Hubbuch's Response to said letter." By letter dated May 20, 2010, Mr. Taylor initiated this appeal challenging the failure of the KSP to issue a timely written response to his request. KSP denies receiving the request. Although this office is unable to conclusively resolve the related factual dispute, on appeal the agency has advised that no responsive documentation exists because Sergeant Hubbuch did not receive a letter dated May 3 nor did he maintain a copy of related correspondence. 1 KSP cannot produce nonexistent records for inspection or copying, nor must KSP "prove a negative" in order to refute a claim that certain records exist; accordingly, this office finds no error in the disposition of Mr. Taylor's request.
Upon receiving notification of Mr. Taylor's appeal from this office, Emily M. Perkins, Paralegal Consultant, responded on behalf of KSP, initially advising that the KSP Official Custodian of Records "never received the open records request, and personnel at Kentucky State Police Post 5 indicate that a records request was not received at that location." Ms. Perkins contacted KSP Post 5 upon receipt of this appeal "to determine what records were in existence pertaining to this matter." As Ms. Perkins explained:
I was advised that Sgt. Hubbuch did not have a letter written to him dated May 3, 2010. The only records in existence pertaining to Mr. Taylor [are] a copy of the letter and 'criminal complaint' he wrote to the Oldham County Attorney regarding [Department of Corrections] employee Aimee Tetidrick, a letter from the Oldham County Attorney's Office to KSP Post 5, and a dispatch log entry. Sgt. Hubbuch also advised that he did not maintain a copy of the correspondence he wrote to Mr. Taylor upon his receipt of the April 2010 letter addressed to the County Attorney. Sgt. Hubbuch stated that, although he did not maintain a copy of the correspondence directly between himself and Mr. Taylor, to the best of his recollection the letter to Mr. Taylor advised him that no criminal action would be taken, as Ms. Tetidrick had followed all Correctional facilities['] policies regarding the removal of his gold crown "grill," and that Mr. Taylor needed to mail a letter to the correctional facility to advise them who to send his dental crown to.
The letter dated May 3, 2010, and the letter issued in response to the April 2010 complaint are not in existence or not in the possession of the Kentucky State Police. In a long line of Attorney General Opinions and Open Records, the Office of Attorney General has repeatedly held that a request for a nonexistent record cannot be honored inasmuch as an agency cannot furnish access to a record that it does not have. See 09-ORD-129, 01-ORD-004, OAG 83-11; OAG 87-54; OAG 88-5; OAG 88-44; OAG 91-112; OAG 91-203.
A copy of the letter and complaint written to the Oldham County Attorney, the letter from the Oldham County Attorney's Office to KSP Post 5, and the dispatch log entry are the only records regarding Mr. Taylor in the possession of the Kentucky State Police. These records will be produced to Mr. Taylor upon payment of the appropriate fee of $ 1.11 (which includes 5 pages at .10 per page and .61 postage) to this office. . . .
Because KSP cannot produce nonexistent records for inspection or copying, nor is KSP required to "prove a negative" in order to refute Mr. Taylor's claim that the requested correspondence exists, there is no basis upon which to find that a violation of the Act was committed; rather, Sgt. Hubbuch apparently did not receive Mr. Taylor's May 3 letter, 2 and he no longer has a copy of his letter to Mr. Taylor.
With regard to statutory obligations of a public agency upon receipt of request for nonexistent records, the analysis contained in 07-ORD-188 is controlling; a copy of that decision is attached hereto and incorporated by reference. As the Attorney General has long recognized, a public agency cannot afford a requester access to nonexistent records or those which it does not possess. 3 07-ORD-190, p. 6; 06-ORD-040. In other words, the right of inspection 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. 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 KSP ultimately asserted here.
To clarify, the role of Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(1); this office is without authority to deviate from that statutory mandate. Nevertheless, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the records when the General Assembly enacted KRS 61.8715 in 1994, pursuant to which "public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740]." In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), public agencies must offer some explanation for the nonexistence of the record(s) at a minimum. 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). When, as in this case, a public agency denies that certain records exist, and the record on appeal does not refute that contention, further inquiry is unwarranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83.
As previously indicated, the requested letters are properly characterized as Routine Correspondence, which is governed by Record Series No. M0002 of the General Schedule for State Agencies, developed by the Kentucky Archives and Records Commission pursuant to KRS 171.530, and promulgated into regulation at 725 KAR 1:061. The disposition instructions for Series No. M0002 require that state agencies maintain such records for no longer than two (2) years; accordingly, this office finds the assertion that Sgt. Hubbuch did not keep a copy of his letter to Mr. Taylor to be fully credible.
This office has previously noted that "routine correspondence" (also known as "general correspondence" ) is "not crucial to the preservation of the administrative history of the agency," "is generally of a non-policy nature and without permanent value," and "deals only with the general operations of the agency, . . . which are better documented by other records maintained by the agency." See Records Retention Schedule - General Schedule for State Agencies at page 1, "An Explanation of General Records," and Series No. M0002; 09-ORD-044, p. 6; 03-ORD-024. It is in the nature of a "tool[] which a public employee or officer uses in hammering out official action within the function of his office." OAG 78-626. Although it has an indefinite retention period, 4 it may be retained "no longer than two years." 5 Id. "Discretion rests with the agency and user to determine whether general [routine] correspondence need be retained." 00-ORD-132, p. 9. In other words, "[n]o requirement exists for the permanent archiving of these records." Id.
Having affirmatively indicated to Mr. Taylor that no responsive documentation exists and explained why, KSP discharged its duty under the Open Records Act. 05-ORD-109, p. 3; 02-ORD-144; 97-ORD-161; OAG 91-101. To hold otherwise would result in KSP "essentially hav[ing] to prove a negative" in order to refute a claim that such a record exists in the possession of the agency. 07-ORD-190, p. 7; 07-ORD-188. In the absence of the requisite prima facie showing, this office must affirm the agency's denial of Mr. Taylor's 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. Assuming that KSP made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record[s] requested," 6 as the record on appeal indicates, KSP cannot be said to have violated the Act in denying a request for nonexistent record(s). 05-ORD-109, p. 3.
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.
Quincy Taylor, # 210512Kathy D. PeachEmily M. PerkinsRoger G. Wright
Footnotes
Footnotes
1 Such letters areproperly characterized as Routine Correspondence, Record Series No. M0002 on the General Schedule for State Agencies, the disposition instructions for which dictate that such records must be retained for "no longer than 2 years." As explained in the "Function and Use" section for Series No. M0002, "[t]his series documents implementation of the agency policy espoused in Series M0001, Official Correspondence. Typically, Routine Correspondence includes documents relating to day-to-day activities such as procurement, organizational structure, personnel, customer service, etc." Routine Correspondence includes:
. . . incoming and outgoing correspondence that may consist of: letters, notes, postcards, memoranda, announcements, or other information commonly found in the body of an e-mail message and/or any attachments. Electronic mail messages also contain transactional information (sender, recipient, date, subject, etc.) in the header of the message and in the properties field of the electronic file. Routine correspondence does not include: non-business related messages, spam and junk mail. (Emphasis added.)
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2 This office has recognized that "it is not, in general, within our statutory charge to resolve questions of fact or to otherwise act as a trier of fact." 09-ORD-120, p. 4. In other words, the Attorney General "is not equipped to resolve [a] factual dispute [when presented with conflicting factual narratives]." Id. (Citation omitted.) The record on appeal is devoid of any proof to refute Sgt. Hubbuch's assertion that he did not receive Mr. Taylor's letter.
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3 As consistently emphasized by this office, the Open Records Act does not empower the Attorney General to order the creation of records. See 96-ORD-139; OAG 78-231. In 95-ORD-48, the Attorney General reaffirmed this longstanding principle in light of recent amendments to the Open Records Act, expressly declining "the invitation to invade the prerogative of public agencies in determining, 'in accordance with standards, rules and regulations prescribed by the Department for Libraries and Archives,' what records they must create. KRS 171.640." Thus, our office has affirmed the principles articulated in OAG 78-231 and its progeny relative to records creation, concluding that the Attorney General "cannot order an agency to create records, or declare its failure to do so a subversion of the intent of the Open Records Act. " 96-ORD-139, p. 2. See 98-ORD-5. As a corollary to this proposition, the Attorney General has often noted that a public agency cannot afford a requester access to nonexistent records.
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4 With regard to "Indefinite Records" generally, the General Schedule provides:
The term "indefinite" is not a retention period and does not mean permanent. Indefinite means the period of time before the retention of the record begins. For example, the retention of the departmental copy of personnel records is five years, but the retention does not begin until the individual's employment with the agency is terminated. In this case, the indefinite period is the time between creation of the record and termination of employment, which triggers the five year retention period. In the case of reference and informational material, the retention is determined by when the records cease to have value administratively, which could be one day, one month, or several years. The disposition instructions in the General Schedule explain the conditions under which indefinite records may be destroyed.
5 Although the General Schedule encourages public agencies "to set a fixed period" for the retention of routine correspondence "and see that staff retains it for that length of time," whether KSP has done so is a records management issue beyond the scope of this appeal.
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6 "In assessing the adequacy of a public agency's search we 'need not go further to test the expertise of the agency, or to question its veracity, when nothing appears to raise the issue of good faith.'" 95-ORD-96, p. 7, citing Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).
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