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 Runyon Elementary School ("Runyon") violated the Kentucky Open Records act in its disposition of John Hicks' April 12, 2010, request to inspect records relating to his application for employment. We conclude that Runyon did not substantively violate the Act but committed a procedural violation by failing to make a timely response.
In his April 12 letter, addressed to Principal Rosa Wolfe, Mr. Hicks requested the following:
Please provide me with a copy of the reference check that was conducted by your site base[d] decision making councils and Frank Welch/David Lester to the Floyd County school board in relation to my 02 application for employment with Runyon Elementary.
Send record on the minutes and any other records to show the communication between Frank Welch/David Lester and Runyon Elementary in making hiring decisions for the 02-03 school year.
Send records to show that Runyon Elementary communicated with Frank Welch/David Lester and what he and/or they said about my reference check to Floyd County school board and what Mr. Welch/Lester communicated back to Runyon Elementary in relation to hiring teachers and me.
Having evidently received no response from Runyon, Mr. Hicks initiated an appeal to the Attorney General on April 28, 2010.
On May 7, 2010, Principal Wolfe responded to Mr. Hicks' appeal as follows:
There is no record of a reference check that Mr. Hicks claims was conducted by Runyon Elementary School's SBDM Council, Frank Welch, or David Lester in relation to a 2002 job application.
There are no minutes that indicate communication between Frank Welch/David Lester and Runyon Elementary School concerning hiring decisions for the 2002-03 terms.
There are no records in existence at Runyon Elementary School indicating communication from the Pike County Board of Education or representatives concerning hiring teachers for the 2002-03 term.
Additionally, Neal Smith, Legal Counsel for the Pike County School District, sent a letter to Mr. Hicks on May 12, 2010, stating:
Please be advised that the Runyon Elementary School has no documentation that would conform to the request contained in you April 12, 2010 Open Records Request. There is no documentation relative to a reference check conducted by the Site Based Decision Making Council of the Runyon Elementary School or Superintendent Frank Welch and Personnel Director, David Lester, relative to your 2002 application for employment. In addition, there are no minutes or records reflecting any communication between Superintendent Welch, Mr. Lester or the Runyon Elementary SBDM with regard to hiring decisions for the 2002-2003 school year. Lastly there are no records indicating any communication between the Runyon Elementary SBDM, its Principal Rosa Wolfe and Superintendent Welch or Mr. Lester regarding any reference check to the Floyd County School District relative to your application for employment.
In summary neither the Central Office of the Pike County School District nor the Runyon Elementary School has any documentation which you have requested in your April 12, 2010 Open Records Request.
We find that Runyon committed a procedural violation of the Open Records Act by failing to respond to Mr. Hicks' request within three business days as required by KRS 61.880(1). Substantively, however, we find no violation of the provisions of the Act because Runyon possessed no records responsive to the request.
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. In general, it is not our duty to investigate in order to locate documents which the public agency states do not exist.
The Kentucky Open Records Act was substantially amended in 1994. 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. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by explaining why the agency does not possess the record, we do not believe that this appeal warrants additional inquiries, since we do not have a substantial basis on which to dispute the agency's representation that no such records existed. Cf.
Bowling v. Lexington-Fayette Urban County Gov't, 172 S.W.2d 333, 341 n.4 (Ky. 2005) (complaining party has the burden of production in litigation over the existence of a public record).
Mr. Hicks' contention is that David Lester told Mr. Hicks he had received a negative reference from the Floyd County school board, and "[s]ince David Lester communicated to me about what Floyd County school board told him, there should be a record to back up his statement to me." Even if this entire account is true, it is not inconsistent with Runyon's position that no records exist regarding the purported conversations. We therefore find no substantive violation of the Open Records Act.
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.
John HicksRosa Wolfe, PrincipalRoger Wagner, SuperintendentNeal Smith, Esq.