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 Labor Cabinet violated the Kentucky Open Records Act in denying Gregory A. Valentine's April 19, 2011, request "to inspect by copy all records related to that certain complaint forwarded by this correspondent to your agency and received thereat [sic] on April 12, 2011[,]" excluding "all documents with said complaint, except Form ES-8 complete with all information contained at the bottom of the form, i.e., case number, assigned personnel, date assigned, etc. . . . [but including] Record Series MOOO2, M0022, E0059, and 00724," as well as "all records, potentially including (but not necessarily limited to) Record Series M0003, M0007, and M0022, which detail and/or outline the processing, investigation, and resolution of employee complaints related to KRS 337.060, 337.275, and 337.990, specifically including, but not necessarily limited to, those identifying relevant personnel, time frames and/or deadlines associated therewith." In a timely but otherwise deficient response, Paralegal Consultant April L. Abshire advised Mr. Valentine that his request for "copies of records from the Division of Employment Standards investigative file" received on April 21, 2011, "is not available at this time as those files are still pending." (Original emphasis.) Ms. Abshire further advised Mr. Valentine that he could resubmit his request in six weeks for a status update. Noting that Ms. Abshire did not cite a statutory exception or indicate that no responsive documents exist, nor did she "identify the records in question as to character, title or content" or address the portion of his request identifying records that "would not properly be associated with any specific file, but were general in nature," Mr. Valentine initiated this appeal. Based upon the following, this office finds that in failing to initially advise Mr. Valentine that no responsive documents currently existed, the Cabinet failed to discharge its duty; however, the Cabinet is not required to produce nonexistent records, nor is the Cabinet expected to "prove a negative" in order to refute a claim that certain records existed at the time of the request 1 under the rule announced in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005).
Upon receiving notification of Mr. Valentine's appeal from this office, Ms. Abshire supplemented her response on behalf of the Cabinet, initially explaining that no records could be released at the time of Mr. Valentine's request "as the complaint/file was signed by the complainant on April 11, 2011, and the open records request was made only 8 days after the complaint was filed." Ms. Abshire further advised that as of May 3, 2011, the date of her supplemental response, the Cabinet's file contains "only the information that Mr. Valentine has provided to us. No other information has been placed in the file, as our investigator has not yet had an opportunity to contact the employer, much less complete her investigation. Accordingly, this agency has no documents responsive to the request at this time."
Ms. Abshire spoke with Mr. Valentine by telephone on May 2, and her recollection of that conversation is that he indicated "that he is primarily interested in obtaining a copy of the wage and hour procedures and timelines that govern the investigation of complaints." As Ms. Abshire explained to Mr. Valentine by letter dated May 3, 2011, the Cabinet "has no written procedures concerning investigation of complaints; the procedures are left to the discretion of each individual investigator in the field." In subsequent correspondence, Mr. Valentine found the Cabinet's assertion regarding the nonexistence of such documents "unconvincing" and noted that Ms. Abshire's recollection of their conversation "is markedly different" from his. Mr. Valentine clarified that his primary concern was documents "outside the scope of his specific file" and, in his view, Ms. Abshire "fails to grasp the exact nature of the request at issue."
On May 16, 2011, the undersigned counsel contacted Ms. Abshire to ask whether she planned to address Mr. Valentine's reply letter, and to clarify whether any records of a more general nature, which might fall into any of the specified records series and thus be responsive, whether contained in the file or not, existed at the time of Mr. Valentine's request. Ms. Abshire confirmed that no documents, except for the completed ES-8 Form, existed then or now, and reiterated there is "nothing else, even general in nature, at this point." By letter directed to Mr. Valentine on May 17, 2011, a copy of which Ms. Abshire forwarded to the undersigned counsel, she advised Mr. Valentine that upon receipt of his May 6, 2011, letter she requested the ES-8 Form (Employment Complaint Form) from the Office of Workplace Standards," a copy of which she enclosed with her letter. Ms. Abshire reiterated that "[n]o other information exists in the file at this time, other than the information provided by you." When the "case becomes final," she continued, "you may resubmit your request for a complete releasable copy of the file."
Because the Cabinet ultimately advised Mr. Valentine that no responsive documents exist, and explained why, this office finds no error in the agency's final disposition of his request in the absence of any objective proof that such documents actually exist. Mr. Valentine has not cited any statute, regulation or case law that would require creation of such records in a certain time frame. 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, nor is this office "empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability. " 08-ORD-206, p. 1.
As the Attorney General has consistently 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 as the Cabinet ultimately asserted here more than once. The Attorney General has expressly so held on many occasions. 04-ORD-205, p. 4; 99-ORD-98.
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, 2 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 (s), and, if so, whether the record(s) 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 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 any responsive documents exist beyond those already provided, and, confirms that no records have been created yet, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9. As previously indicated, this office is "not empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability. " 08-ORD-206, p. 1.
In responding to Mr. Valentine's appeal, the Cabinet affirmatively indicated that no records matching the description(s) provided currently exist. The Cabinet now finds itself in the position of having to "prove a negative" in order to conclusively refute Mr. Valentine's claim that such records must 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 "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." 3 In a series of decisions issued since Bowling, this office has been obliged to affirm public agency denials of requests based upon the nonexistence of records in the absence of a prima facie showing that the records being sought did, in fact, exist in the possession of the agency. See, e.g., 06-ORD-042; 07-ORD-188; 07-ORD-190; 08-ORD-189.
While Mr. Valentine's point regarding the apparent lack of investigatory guidelines or procedures may be well-taken, the fact remains that he "produced no affirmative evidence, beyond mere assertions, that the agency possesses such records as he has requested," and thus "we do not have a sufficient basis on which to dispute the agency's representation that no such records exist." 09-ORD-214, pp. 3-4; see 07-ORD-033 (requester failed to cite any specific legal authority directing the creation of the record and independent research disclosed no requirement that such a record exist). Under the circumstances presented, this office is not inclined to ask the agency to "prove a negative . . . by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives." Bowling, above, at 341. Compare 11-ORD-074 (holding that "existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable" and the agency failed to rebut the presumption).
The analysis contained in 07-ORD-188 and 07-ORD-190 is controlling on this issue; a copy of each decision is attached hereto and incorporated by reference. Assuming that the Cabinet made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested," to the extent appropriate or necessary on theses facts, the Cabinet belatedly complied with the Act, regardless of whether the search yielded any results, in affirmatively indicating that no such records were located and explaining why. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-38; 97-ORD-161. To hold otherwise would result in the Cabinet "essentially hav[ing] to prove a negative" to refute Mr. Valentine's claim that records aside from the Form ES-8 existed at the time of his request. 07-ORD-190, p. 7. In the absence of the requisite prima facie showing, this office must affirm the Cabinet's denial of Mr. Valentine's request in accordance with Bowling, above, and prior decisions of this office such as 07-ORD-188 and 07-ORD-190.
That being said, however, this office also notes that in defining the statutory obligations that a public agency has when denying access to public records based on their nonexistence, the Attorney General has also consistently recognized that "it is incumbent on the agency to so state in clear and direct terms" and that "a written response that does not clearly so state is deficient. " 02-ORD-144, p. 3 (citations omitted). If the agency has affirmatively indicated that no responsive documents exist, nothing else is required in the absence of a prima facie showing to the contrary; however, the Cabinet did not initially deny Mr. Valentine's request based on the nonexistence of the records, merely asserting instead, without citing the purportedly applicable statutory exception per KRS 61.880(1) or explaining how it applied, that the case was "still pending." With regard to what is required of a public agency under the kind of circumstances presented, the analysis contained in 09-ORD-019 is controlling; a copy of that decision is attached hereto and incorporated by reference. In short, when a record for which inspection is being sought does not exist, "the agency should specifically so indicate." OAG 90-26, p. 4. Accordingly, this office concludes that while the Cabinet obviously cannot produce for inspection or copying that which it does not have or which does not exist, inasmuch as the Cabinet initially failed to affirmatively indicate as much to Mr. Valentine, its original response was procedurally deficient. The agency's ultimate disposition of Mr. Valentine's request is affirmed for the reasons previously stated. 4
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:
Gregory A. ValentineApril L. AbshireDavid O'Brien Suetholz
Footnotes
Footnotes
1 In 94-ORD-52, the Attorney General observed:
This Office has consistently recognized that the Open Records Act regulates access to public records, and not records management, or, in this instance, the purported failure of a public agency to generate a given record in a timely fashion. Our opinion must be limited to the question arising under KRS 61.870 to KRS 61.884. Simply stated, that question is: Does the public agency have the document in its possession at the time the request is submitted? OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-220; 93-ORD-51. The question of whether a document "should" exist is not cognizable under the Open Records Act.
Id., p. 3 (emphasis added); 93-ORD-55; 07-ORD-126.
2 See KRS 61.8715.
3 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."
4 See 99-ORD-168 for discussion of which records contained in the subject file may be properly withheld in accordance with KRS 337.345.