Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Cabinet for Health and Family Services violated the Kentucky Open Records Act in denying Betty Boles Ellison's June 13, 2011, request for "[p]ayroll records for the Cabinet's Language Access Section (oral interpreters) of Qualified Immunity Partners for the fiscal year 2009-2010." In a timely, but otherwise deficient written response, Jay Klein, Director of the Division of Employee Management, denied Ms. Ellison's request as "no such documents exist" and the "Attorney General has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. [Citations omitted.]" Noting that Mr. Klein previously supplied her with "nineteen pages, containing names of 300 individuals and eight organizations, the Cabinet uses for oral interpreters, " and that his response to her current request seems to imply that "those 300 individuals and eight organizations provide their services as interpreters to the Cabinet on a pro bono basis," Ms. Ellison initiated this appeal shortly thereafter. Given the detailed explanation for the nonexistence of such records belatedly provided in response to Ms. Ellison's appeal following a thorough search for same, and the agency's willingness to release the only existing responsive documents, the final disposition of Ms. Ellison's request is affirmed.
Upon receiving notification of Ms. Ellison's appeal from this office, Assistant Counsel Catherine York responded on behalf of the CHFS, in relevant part, as follows:
No payroll records exist for the oral interpreters in the Cabinet's Language Access Section of Qualified Community Partners. The individuals listed in the document previously provided to Ms. Ellison are those who have been tested and trained to provide oral interpreting services on an as requested basis. Not all of those listed have been used and very few are used with any regularity. The only payroll records for the Cabinet's Language Access Section are for internal employees, and, in fact, payroll records only exist for employees, past and present, of the Cabinet. Qualified Community Partners are not employees of the Language Access Section and as such, no payroll records exist for them. Ms. Ellison's request appears [to] seek payroll records related to Qualified Community Partners' oral interpreters and those records simply do not exist. . . .
In subsequent correspondence, Ms. Ellison questioned how the CHFS pays the translators it does use and why the CHFS would expend "funds to test and train these individuals if they do not intend to use them." Ms. Ellison cited no legal authority that would create a rebuttable presumption that such records exist.
In the interest of both fairness and efficiency, and in order to gain a better understanding of the context surrounding the instant dispute, this office relayed the questions posed by Ms. Ellison to Ms. York on July 18, 2011, in order to give the CHFS an opportunity to address her questions and concerns, and further indicated that an overview of the Community Partners program would be useful in resolving this matter. 1 By letter dated July 20, 2011, Ms. York explained that Community Partners is a program "used as a means of compliance with federal mandates" regarding the "provision of services to clients with limited English proficiency." The CHFS is required, Ms. York advised, to have a mechanism by which to ensure the "quality of interpretation and translation services provided." 2 Given the numerous programs and offices of the CHFS across the Commonwealth, Ms. York continued, "it is in the Cabinet's best interest to have multiple resources available to provide interpretation services to meet the varying needs." The CHFS "has a wide array of interpretation and translation resources available including full-time staff in the Language Access Section, bilingual staff in the field, a contract with a telephonic interpreting company (Language Services Associates), and community partners who we have deemed qualified to provide interpretation services."
Ms. York further explained that the Language Access Section "tests and trains interpreters and then places those who are deemed qualified in accordance with Cabinet standards on a list of qualified community partners that is made available to all Cabinet offices and programs." She clarified that no guarantee is given "that any specific individual on the list will be utilized by local offices or programs but their information is made available as one of the qualified resources our staff are able to utilize to meet client needs." This list is also made available upon request to "numerous Cabinet partners, such as local health departments, many of whom rely on the Cabinet's qualification procedures to comply with the federal mandate." When an interpreter is utilized by the CHFS, Ms. York observed, "they are considered an independent contractor and are reimbursed on a fee for service basis. The interpreter submits an invoice to the local office or program that utilized their services and that invoice and payment are processed through that office's normal payment procedures, usually with the Division of General Accounting." As Ms. York explained, the funds used to pay for the services "vary depending upon what program utilized the services." In closing, Ms. York advised that if Ms. Ellison wishes to receive copies of the invoices and records documenting payment of those invoices, the Division of General Accounting "will be happy to do what it can to gather those documents. There are many different vendors and they are not catalogued by service type so it may take some time to gather the documents." Ms. York asserted that Ms. Ellison did not actually request such documents initially, 3 but instead specifically asked for "payroll records," and Mr. Klein "was not aware of the existence of these documents . . . and, as such, could not direct her to the Division of General Accounting in the event that she wanted these records instead of the payroll records that do not exist in any location within the [CHFS]." In accordance with governing precedents referenced below, the Attorney General affirms the final disposition of Ms. Ellison's request.
This office has long recognized that a public agency cannot afford a requester access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Rather, 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 in affirmatively indicating that no such records exist. On many occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 99-ORD-98. Under the circumstances 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. Rather, KRS 61.880(2)(a) narrowly defines our scope of review.
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, 4 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 currently exist and that are in the possession or control of the public agency to which the request is directed; however, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the records being sought after KRS 61.8715 took effect on July 15, 1994.
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 requested records at a minimum. See 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 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 (if not initially) supports rather than refutes that contention, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9. 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 Ms. Ellison's request the CHFS did not initially provide any explanation for the nonexistence of the payroll records being sought nor did the agency indicate that any type of reasonable search was conducted to locate potentially responsive documents or advise that vouchers and other documents reflecting payments for oral interpreting services exist; accordingly, the CHFS initially failed to satisfy its burden of proof under KRS 61.880(2)(c). In determining whether a public agency has adequately searched for public records in dispute, this office applies the standard first articulated in 95-ORD-96 as follows:
[T]he Open Records Act does not require an agency to conduct "an exhaustive exhumation of records," Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D. N.Y. 1983). It is, however, incumbent on an agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, above at 775.
(Emphasis added.) The initial response by the CHFS contains no indication that a search of any kind was conducted, let alone the requisite description of the search methods employed. In 10-ORD-051, a copy of which is attached hereto and incorporated by reference, this office determined that the record on appeal contained insufficient proof that the agencies to which requests were directed "conducted an adequate search for records presumed to exist." This office ultimately concluded that the Attorney General could not "approve agencies' denials based on the records' apparent nonexistence in the absence of such proof." 10-ORD-051, p. 1. No basis for departing from this precedent has been presented here. Accordingly, this office must conclude that in failing to "make a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested [whether "payroll records" or the functional equivalent thereof]," the CHFS violated the Open Records Act. 11-ORD-031, p. 3, citing 95-ORD-96, p. 7; see also 11-ORD-036 (copy enclosed).
That said, Ms. York reiterated on appeal that no "payroll records" exist and ultimately satisfied the agency's burden of proof under KRS 61.880(2)(c) by explaining why in great detail while agreeing to provide the responsive vouchers. Now the CHFS finds itself in the position of having to "prove a negative" in order to conclusively refute Ms. Ellison's claim that "payroll records" do exist. The Kentucky Supreme Court has recognized that "allowing public agencies to avoid judicial review by denying a record's existence . . . remove[s] accountability from the open records process," but further acknowledged that public agencies may be unreasonably burdened with "the unfettered possibility of fishing expeditions for hoped-for but nonexistent records . . . " if required to "prove a negative" in order to refute a claim that certain records exist, "presumably 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. Addressing this dilemma, in Bowling the 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." 5 Id. 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 certain public records in the absence of a prima facie showing that 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. 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.
Recently this office noted that "a record's existence can be presumed" at the administrative level "where statutory authority for its existence has been cited or can be located." In order to ensure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective," Bowling at 341, this office further held that "the existence of a statute, regulation, or case law directing the creation of the requested record" creates a rebuttable presumption of the record's existence, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4. Although no such authority has been cited or independently located here, the CHFS nevertheless adequately explained the nonexistence of the "payroll records" on appeal in response to Ms. Ellison's legitimate questions and concerns. CHFS further agreed to provide Ms. Ellison with copies of the responsive "invoices and documents showing payment of these invoices. " In the absence of the requisite prima facie showing, or any evidence to suggest that responsive "payroll records" were created or maintained in this case, beyond the vouchers and other documents (no meaningful distinction here) CHFS ultimately agreed to produce, 6 this office must affirm the agency's final disposition of Ms. Ellison's request in accordance with Bowling, above, and prior decisions of this office such as 07-ORD-188 and 07-ORD-190. See 11-ORD-081; 11-ORD-091.
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:
Betty Boles EllisonJay KleinCatherine York
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