Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
[EDITOR'S NOTE: THE ORIGINAL SOURCE CONTAINED ILLEGIBLE WORDS AND/OR MISSING TEXT. THE LEXIS SERVICE WILL PLACE THE CORRECTED VERSION ON-LINE UPON RECEIPT.]
Open Records Decision
At issue in this appeal is whether the Scott County Sheriff's Office violated the Kentucky Open Records Act in the disposition of Tammie T. Nava's eight separate February 21, 2007, requests for "one copy of each prior open records request[s]" from 2004, 2005, 2006, and 2007, and "one copy of each S.O. [presumably Sheriff's Office] Report made for Tammie Nava" in each of those years, respectively. Because the current Sheriff ultimately provided Ms. Nava with a copy of each responsive "S.O. Report" in response to her appeal, the related issues are now moot per 40 KAR 1:030, Section 6; 1 accordingly, this office must respectfully decline to issue a decision regarding those records 2 and will focus exclusively on the agency's disposition of Ms. Nava's February 21, 2007, requests for one copy each of the requests that were submitted in 2004-2007. The Sheriff's Office cannot produce that which it does not have, and is not required to "prove a negative" in order to refute a claim that such records currently exist; however, inasmuch as the record on appeal raises possible records management and retention issues relating to previously existing requests, the loss or destruction of which has not been sufficiently explained, this matter is hereby referred to the Kentucky Department for Libraries and Archives, consistent with KRS 61.8715, for additional inquiry as that agency deems warranted, notwithstanding the fact said issues originated prior to current Sheriff Tony Hampton taking office. 3
Ms. Nava included a copy of a February 20, 2007, memorandum directed to her by Deputy Buster Cannon with her March 11, 2011, appeal challenging the actions of the Sheriff's Office in relation to her February 2007 requests. In that memorandum, Deputy Cannon advised Ms. Nava, in relevant part, that his response was "in reference to your records that were being kept by Deputy Cannon at the Scott County Sheriff's Office." According to Deputy Cannon, the records had "either been misplaced or may have been disposed of during the moving of the office in August. Copies were supposed to be the only thing in the file there fore; [sic] you should have the original[s] in your possession." Upon receiving notification of Ms. Nava's appeal from this office, Scott County Attorney Glenn M. Williams responded on behalf of the Sheriff's Office, quoting OAG 87-54, OAG 91-112, OAG 91-138, and OAG 91-101 in support of his assertion that Deputy Cannon's February 20, 2007, response advising that none of the records existed was "sufficient to meet the requirements set forth in KRS 61.872."
The undersigned counsel subsequently contacted the Sheriff's Office in order to better understand the sequence of events which culminated in this appeal given how much time had elapsed since Ms. Nava's original requests, and the lack of context provided, as well as the discrepancy in the date of the requests and that of the only response provided (February 21, 2007, and February 20, 2007, respectively). Upon learning that Sheriff Hampton had not actually received his copy of the Notification and the attachments, the undersigned counsel forwarded a copy to Sheriff Hampton and gave him the opportunity, in accordance with protocol, and in the interest of efficiency, to conduct a search for any existing responsive documents and consult with his legal counsel (the County Attorney) before supplementing his agency's response. By letter directed to Ms. Nava on March 23, 2011, a copy of which Sheriff Hampton forwarded to the undersigned counsel, Sheriff Hampton explained that he was providing copies of the S.O. reports in dispute, and that in his February 20, 2007, letter, Deputy Cannon was referring "to the file Sheriff Hammons had been keeping for you containing personal correspondence not the reports that were filed with the office. Those personal items that you had given to him were no longer available as they were lost during the move to our new office back in 2007." In closing, Sheriff Hampton apologized for any confusion.
By letter directed to both Ms. Nava and the undersigned counsel on March 28, 2011, Deputy Cannon confirmed that his February 20, 2007, letter "was referring to the personal documents not the official ones that we keep." 4 In a March 29, 2011, telephone conversation with the undersigned counsel, Ms. Nava confirmed receipt of the "S.O. report[s]" in dispute; accordingly, our analysis focuses exclusively on the disposition of Ms. Nava's request(s) for one copy each of the requests that she made in 2004-2007. Because no mention was made of the February 21, 2007, requests for copies of prior requests in the agency's first response to Ms. Nava's appeal, the undersigned counsel asked Sheriff Hampton for clarification regarding the status of these requests by telephone on March 29, 2011. By letter of the same date, Sheriff Hampton advised Ms. Nava and this office that he and his staff "searched our records and we have not been able to locate your request[s]. We can only assume the prior administration didn't keep copies of Open Records Requests." Sheriff Hampton further indicated that his administration will "keep records on all requests." In closing, Sheriff Hampton apologized for the omission of this information from his March 23, 2011, response. Because the Sheriff's Office cannot produce nonexistent records for inspection or copying, and has now confirmed, following a thorough search, that none of Ms. Nava's prior written requests from 2004-2007 still exist in the custody of the agency, this office has no basis upon which to find that a substantive violation of the Act was committed; however, the uncertainty regarding whether such documentation was lost or prematurely destroyed necessitates a referral to KDLA in order to ensure that the Sheriff's Office can successfully implement a proper system of records management and retention.
As the Attorney General has recognized, a public agency cannot afford a requester access to nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. Rather, the right to inspect 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; 04-ORD-205. 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 Sheriff's Office ultimately asserted here. The Attorney General has expressly so held on many occasions. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 99-ORD-98. 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; 94-ORD-140; 04-ORD-205. Our scope of review is expressly limited by the language of KRS 61.880(2)(a).
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, 5 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 94-ORD-140 (records of subject investigation not in sheriff's custody because sheriff did not conduct the investigation); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 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). When, as in this case, a public agency denies that any such records exist, and the record on appeal does not refute that contention, further inquiry is not warranted in this forum. 05-ORD-065, pp. 8-9; 00-ORD-83; 01-ORD-36.
In responding to Ms. Nava's appeal, Sheriff Hampton asserted that no documents exist which are responsive to her February 2007 requests for copies of prior Open Records requests. The Sheriff's Office now finds itself in the position of having to "prove a negative" in order to conclusively refute Ms. Nava's claim that additional records exist. Addressing this dilemma, in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), 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." 6 In a series of decisions issued since Bowling, this office has been obliged to affirm public agency denials of requests based on the nonexistence of responsive records in the absence of a prima facie showing that the records sought did, in fact, exist. See, e.g., 06-ORD-042; 06-ORD-223; 07-ORD-188; 07-ORD-190. Because the instant appeal presents no reason to depart from governing precedents, the same result necessarily follows here.
With regard to statutory obligations of a public agency upon receipt of a request for nonexistent records, the analysis contained in 07-ORD-188 and 07-ORD-190 is controlling; a copy of each decision is attached hereto and incorporated by reference. In the absence of the requisite prima facie showing, this office is compelled to affirm the disposition of Ms. Nava's request(s) in accordance with Bowling, above, at 340-341, and prior decisions of this office such as 07-ORD-188 and 07-ORD-190. To hold otherwise would result in the Sheriff's Office "essentially hav[ing] to prove a negative" in order to refute a claim that such records exist. 07-ORD-190, p. 7. As the Attorney General has long recognized, this office cannot "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office" under the Act. OAG 89-81, p. 3.
Nevertheless, pursuant to KRS 61.8715, the enactment of which this office characterized as a "watershed in the evolution of the Open Records Law[,]" public agencies are required "to manage and maintain [their] records according to the requirements" of the Open Records Act, KRS 61.870 - 61.880, and the State Archives and Records Act, KRS 171.410 - 171.740, in order "to ensure the efficient administration of government and to provide accountability of government activities. . . ." KRS 61.8715. 94-ORD-121, p. 8. In addressing the "essential relationship" between these chapters, the Attorney General has further observed:
Until July 15, the State Archives and Records Act, codified at KRS 171.410, tracked a parallel path to that of the Open Records Act. Those paths now converge. Under the provisions of the Archives and Records Act, "[t]he head of each state and local agency shall establish and maintain an active continuing program for the economical and efficient management of the records of the agency." KRS 171.680. The agency's program must provide for:
Among the duties imposed on the agency head by operation of these provisions, he must "establish such safeguards against removal or loss of records as he shall deem necessary and as may be required by rules and regulations issued under authority of KRS 171.410 to 171.740." KRS 171.710. These safeguards include "making it known to all officials and employees of the agency that no records are to be alienated or destroyed except in accordance with law, and calling attention to the penalties provided by law for the unlawful removal or destruction of records." KRS 171.710
In enacting KRS 61.8715 the General Assembly recognized that the intent of the Open Records Act, to provide full access to public records, was essentially related to, and would be promoted by, efficient records management. This, of course, is the intent and purpose of the State Archives and Records Act. Subversion of the intent of the Archives and Records Act thus constitutes subversion of the intent of the Open Records Act. If a public agency fails to discharge its statutorily mandated duty to establish effective controls over the creation, maintenance, and use of records, and to make known to all of its officials and employees that no records are to be destroyed except in accordance with the law, the agency subverts the intent of the Open Records Act by frustrating full access to public records.
94-ORD-121, p. 8-10. In other words, "the key to records access is effective records management." Id., p. 10.
Given the statutorily recognized interrelationship between records management and records access, the inability of the Sheriff's Office to either produce copies of the Open Records requests or fully explain why it cannot and under what authority such records were destroyed, if appropriate, raises a question regarding the records management practices of the agency. To satisfy its burden of proof under KRS 61.880(2)(c) a public agency must explain by what authority the records were destroyed. Loss or destruction of a public record creates a rebuttable presumption of records mismanagement. Although the record is devoid of any objective basis to suggest bad faith on the part of the Sheriff's Office, it also has been unable to rebut this presumption.
Pursuant to KRS 171.420, the State Archives and Records Commission is authorized to "review and approve schedules for retention and destruction of records submitted by state and local agencies." Additionally, the Commission is charged with the duty to "establish standards for the selective retention of records of continuing value," and the Department for Libraries and Archives with the duty to "assist state and local agencies in applying such standards to records in their custody. " KRS 171.530 . Of particular significance, the Commission exercised this authority in creating the Local Government General Records Retention Schedule, the "Administrative" section of which contains Record Series L4963, entitled "Open Records Request for Inspection/ Disposition Record," which "documents requests for information from the public, the press, or other governing agency. It is a joint form that also documents approval and/or denial of information and supporting documentation. " 7 Records falling in this category are characterized as "vital records" and must be retained for one year prior to being destroyed. It follows that the Sheriff's Office could have properly destroyed any Open Records requests made by Ms. Nava in 2004, 2005, or before February 21, 2006, in the normal course of business prior to receiving her February 21, 2007, request for copies of those requests; however, the agency was required to still have any requests made in 2007. Insofar as the Sheriff's Office did not cite this authority or seem to know for a fact whether the records were lost or destroyed nor did the agency locate any of her 2007 requests, the Attorney General is obliged to refer the matter to the Department for Libraries and Archives in accordance with KRS 61.8715 for additional inquiry as that agency deems warranted.
Ultimately, this office cannot afford Ms. Nava the relief she seeks relative to copies of her prior Open Records requests, to the extent any would even still have existed at the time of her February 21, 2007, requests under applicable records retention requirements. The Attorney General is not empowered to declare the inability of the Sheriff's Office to produce nonexistent records a violation of the Open Records Act or to compel the Sheriff's Office to maintain records for a specific period of time. Inasmuch as the latter prerogative resides with the KDLA and the Archives and Records Commission, the Attorney General respectfully defers to these entities on the issues raised.
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.
Distributed to:
Tammie T. NavaTony HamptonGlenn T. WilliamsBarbara Teague
Footnotes
Footnotes
1 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087.
In 05-ORD-236, the Attorney General expressly recognized that "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are generally not capable of resolution under the Act." Id., p. 3 (reporter questioned the validity of invoices produced in response to request, and the Attorney General advised that the relief sought was unavailable under the Act). See also 02-ORD-89 (recipient of public records questioned the quality and value of the information contained in those records and the Attorney General refused to consider this issue); 05-ORD-008 (questions concerning the value of information contained in records produced for public inspection are not justiciable in Open Records appeal). As in these decisions, the Attorney General finds that any issues concerning the value of information contained in public records produced for inspection are not justiciable in the context of an Open Records appeal. If Ms. Nava has evidence that the Sheriff's Office willfully concealed or tampered with records in 2007, she may wish to consider the options available under KRS 61.991(2)(a); such issues cannot be resolved under KRS 61.880(2)(a) nor does the record on appeal contain any evidence of such wrongdoing by the current Sheriff.
2 Current Sheriff Tony Hampton was not in office in 2007 and thus inherited this matter, so to speak, but did not personally commit any procedural or substantive provisions of the Open Records Act; however, this office has recognized that public records "belong to the office, not the office holder, [and therefore] the current [Sheriff] is responsible for establishing and maintaining an active, continuing program for the management of the records of the agency he serves that includes those records generated in past administrations." 07-ORD-020, p. 7 (copy attached); see also 08-ORD-059 (copy attached). By all indications, Sheriff Hampton has acted in good faith in attempting to resolve this matter and, to his credit, has also implemented procedures that will hopefully prevent future disputes of this nature.
3 Deputy Cannon and Ms. Nava have differing recollections of the events which occured on or around February 15, 2007 and February 21, 2007, in relation to her submission of a request(s) for the aformentioned personal correspondence and/or the records currently in dispute. Absent objective proof to validate either summary of events, the Attorney General cannot resolve this factual issue or any related legal issues and thus makes no findings in this regard. Our scope of review is narrowly defined at KRS 61.880(2), and this office is without authority to deviate from that statutory mandate.
4 Deputy Cannon and Ms. Nava have differing recollections of the events which occurred on or around February 15, 2007, and February 21, 2007, in relation to her submission of a request(s) for the aforementioned personal correspondence and/or the records currently in dispute. Absent objective proof to validate either summary of events, the Attorney General cannot resolve this factual issue or any related legal issues and thus makes no finding in this regard. Our scope of review is narrowly defined at KRS 61.880(2), and this office is without authority to deviate from that statutory mandate.
5 See KRS 61.8715.
6 Black's Law Dictionary, 1071 (5th ed. 1979), defines prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."
7 The content includes the "[d]ate of request, requesting party name, information requested, copies needed or only viewing, disposition, supporting documentation for decision."