Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services -- Office of Vital Statistics violated the Kentucky Open Records Act in the disposition of Russell and Sharon Loaring's nearly identical January 12, 2010, and March 5, 2012, requests for "all records related to the death of Charlotte M. Burke," including but not limited to "all documents or other records submitted to Vital Statistics for death certificate [sic] and any documents related to amending/revising any death certificate, " in addition to "all records/documents requesting copy of death certificate" 1 or "any documents or correspondence to or from the coroner, funeral home, or any other person." OVS cannot produce nonexistent records for inspection or copying, nor is the agency required to "prove a negative" in order to refute a claim that certain documents exist under governing case law. Having acknowledged the procedural error(s) committed initially and taken steps to avoid future violations, provided the Loarings with a copy of any existing responsive documents, and twice confirmed that no additional documents exist, OVS discharged its duty under the Act. Because the Loarings have "produced no affirmative evidence, beyond mere assertions, that the agency possesses such records as [they have] requested, 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; 12-ORD-012. Neither allegations of records tampering or concealment, nor disputes concerning discrepancies between the records being sought and those provided can be resolved in this forum. See 09-ORD-101; 09-ORD-199.
By letter dated January 19, 2012, Kentucky State Registrar Paul F. Royce confirmed receipt of the Loarings' January 12 request on January 13, 2 further advising that he was enclosing documents responsive to that portion of the request asking for "all records/documents requesting copy of death certificate, " from which personal information was redacted in accordance with KRS 61.878(1)(a), but denying the remainder of the request per KRS 213.131 and 61.878(1)(k) without further explanation. Mr. Royce also provided the Loarings with contact information for the Owen County Coroner's Office per KRS 61.872(4) for any records of the County Coroner being sought. By letter dated March 16, 2012, Mr. Royce issued an identical response to the Loarings' March 5, 2012, request.
By letter dated March 23, 2012, the Loarings initiated this appeal challenging the disposition of both requests, initially observing that the March 5, 2012, request was "not replied to in 3 days." The Loarings further advised "[w]e do not believe we have received all records to which we are entitled." Specifically, the Loarings indicated that nothing received "indicates that any search for requested records was done in 2012." Further, the "two summary sheets" they did receive "refer to mail applications," which the Loarings "believe" must "contain information the summary does not have, for example the number of certificates requested." The Loarings "are also sure that other records exist" because they "are aware of an occasion when death certificates were picked up at Vital Statistics" and "Ms. Burke's death certificate has been revised since her death." They "believe that changes to the certificate would require supporting documentation" and "have also independently verified the existence of other records/correspondence." Finally, the Loarings noted that OVS did not provide "any listing or identification of records that were not provided" under the referenced statutory exceptions.
Upon receiving notification of the Loarings' appeal from this office, CHFS Deputy General Counsel Mona S. Womack responded on behalf of OVS, correctly observing that no specific allegation is made as to "why the 2010 response is unsatisfactory." Ms. Womack then explained:
The appeal states that "Nothing we received indicates that any search for requested records was done in 2012." The Cabinet can understand why the Loarings have this impression however [sic] it is a mistaken impression, as a search was completed in 2010 and again in 2012. Specifically, in response to the January 2010 open records request the agency conducted a full search and determined that two entities had requested the death certificate of Charlotte Burke; those being Kentucky Organ Donor affiliates on February 9, 2009 and McDonald & New Funeral Home on February 4, 2009. Because actual applications for death certificates are not maintained by OVS (due to storage space availability), screen shots of the requests were provided to the Loarings. Those were all of the documents responsive to the request which OVS had when it responded on January 19, 2010 to the January 12, 2010 request.
The Loarings then filed an almost identical request for records in March 2012. While it may appear the agency simply copied the records previously provided, in fact the agency once again completed a thorough search and determined that no further applications for the death certificate of Charlotte Burke had been received. The agency then copied the screen shots previously provided to the Loarings in 2010. This was done simply as a convenience because the application records within the agency's possession had not changed from 2010. The agency regrets any misunderstanding and unequivocally states that it has received no new applications since 2010 for the death certificate of Charlotte Burke.
The agency is in possession of a Coroner's Supplemental Report of Death dated March 24, 2009 and which is attached hereto. However, the agency should have included this document in response to both requests for records. The failure to include this document was a misunderstanding on the part of the agency for which the Cabinet apologizes. The document was not provided because the agency believed such document to be protected by the Health Insurance Portability and Accountability Act (HIPAA). In January 2011 OVS was determined not to be covered by HIPAA. Those responding to the March 2012 request were unaware of this determination. A review of the open records laws and procedures [is] being conducted with staff. A copy is attached hereto and will be provided to the Loarings.
Ms. Womack further acknowledged that OVS failed to issue a timely written response to their March 5, 2012, request. She noted that a certified mail receipt attached to the Loarings' appeal "clearly reflects that an employee of [CHFS] with the initials 'MS' received an article addressed to [OVS] on March 6, 2012." OVS did not reply within three business days. Unfortunately, Ms. Womack explained, "the original letter has never been received in OVS. The Cabinet believes the letter was received and signed for in the Cabinet's mail room but misplaced in the approximately three hundred (300) pieces of mail that OVS receives daily." OVS "understands and acknowledges that the service on March 6, 2012, was effective and the Cabinet had an obligation to respond within three (3) days. The Cabinet apologizes to the Loarings for this error and for the delay this has caused them." Upon receiving Mr. Loaring's March 15, 2012, e-mail, which included a copy of the request, on March 16, 2012, Ms. Womack noted, OVS responded. In closing, Ms. Womack advised that CHFS is "investigating the internal procedure for the delivery of mail to [OVS] in an effort to improve the process."
In reply, the Loarings reiterated that "[n]either our 2010 and our [sic] 2012 were responded to within three days." The Loarings further noted that "[n]either the 2010 [nor] 2012 responses included the Coroners [sic] Supplemental Report of Death," which "is one example of a record that existed at the time of our request, but was not provided." However, they acknowledged having since received a copy of this record. 3 The Loarings also "stand by" their statement regarding the lack of a search for additional records because the "summary sheets" produced in response to each request are identical "including the hand made [sic] redaction[s]. There is nothing visible on these records to indicate they were produced in 2012." 4 If OVS conducted a new search as indicated, the Loarings "believe it would have been a computer search -- current screen shots of records should have been printed -- and if the time and date markings were not blocked/redacted, it would be obvious that they were printed in 2012." Further, the Loarings observed, "[w]e did request all records related to the death of Charlotte Burke -- not just new applications since 2010." Noting that the Coroner's Supplemental Report dated March 24, 2009, "requests that changes be made," and certified death certificates "have been provided to individuals" by OVS, the Loarings "find it hard to believe that the [a]gency would provide [c]ertified [d]eath [c]ertificates without any record of to whom they were provided and no accounting for monies paid for certificates. " Notwithstanding the agency's final response, the Loarings reiterated that no listing "of exactly what records were withheld" under the statutory exceptions partially relied upon each time has been provided.
Ms. Womack supplemented the agency's response shortly thereafter, correctly observing that OVS "has already specifically addressed the delay in responding to the March 5, 2012 request." Although OVS "has already specifically responded to the allegation that no search was conducted in response to the 2012 request," Ms. Womack reiterated that OVS "did in fact conduct a search in response to the March 2012 request. OVS staff saw that the records to be produced in response to this second request were identical to the records which were produced two years earlier." As previously indicated, Ms. Womack continued, OVS "did conduct a computer search in response to the 2012 request" and "the copying of the computer screen shots was done as a convenience because the screen shot had not changed since 2010. OVS regrets that this presented a misleading impression to the Loarings and will not engage in this practice again." While the Loarings may find it hard to believe, OVS explained, it "does not in fact maintain requests for death certificates due to storage space." 5 OVS handles thousands of documents per month; therefore, "only screen shots are maintained and that is why the only record responsive to the Loarings['] request for applications for the Charlotte Burke death certificate was the screen shot. " Now that OVS has produced the Coroner's Supplemental Report of Death, OVS clarified, "[n]o records have been withheld from the Loarings[.]" In sum, OVS "again apologizes for any delay or inconvenience it has caused the Loarings and has taken steps internally to ensure open records requests" made to OVS "will be handled in strict conformity with" the Open Records Act.
Based upon the following, in the absence of a prima facie showing by the Loarings that additional responsive documents exist in the possession or custody of OVS, this office must conclude that OVS discharged its duty under the Act, with the exception of the acknowledged procedural irregularities, 6 by furnishing them with copies of all existing responsive documents following a reasonable search and ultimately confirming that no additional records exist. 7 Because "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act," this office does not address the alleged omissions and discrepancies in the records provided. 04-ORD-216, p. 3; 05-ORD-236.
As the Attorney General has consistently recognized, a public agency cannot produce nonexistent records or those which the agency 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; 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 in affirmatively indicating that no such records exist, following a reasonable search, as the Board has consistently maintained here. This office has expressly so held on many occasions. 04-ORD-205, p. 4; 99-ORD-98; 11-ORD-081. 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, 8 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 supports rather than refutes that contention, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9. 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. 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.
OVS now finds itself in the position of having to "prove a negative" in order to conclusively refute The Loarings' claim that additional responsive documents exist. Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005). 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." Id. 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." 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 responsive documents in the absence of a prima facie showing that documents being sought did, in fact, exist in the possession of the agency. See, e.g., 06-ORD-042; 07-ORD-188; 08-ORD-189; 12-ORD-012. The Loarings have failed to make such a showing here.
This office recently 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." The Loarings have not cited any objective proof or persuasive authority in support of their position, relying instead on their "belief" and the undocumented assertion(s). 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; 12-ORD-038; 12-ORD-065. No such authority has been cited or independently located here. Because the Loarings have "produced no affirmative evidence, beyond mere assertions, that the agency possesses such records as [they have] requested, 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). 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).
In the absence of the requisite prima facie showing, or any evidence to suggest that additional records were created or maintained in this case, the agency's ultimate disposition of the Loarings' request(s) is affirmed in accordance with Bowling , above, and prior decisions of this office such as 07-ORD-188 and 07-ORD-190. To hold otherwise would result in OVS "essentially hav[ing] to prove a negative" in order to refute the Loarings' unsupported claim that additional responsive documents exist. 07-ORD-190, p. 7. 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. In other words, to the extent the Loarings are questioning the volume, content or value of the records produced, such an issue is not justiciable in this forum; rather, "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3; 02-ORD-89; 06-ORD-042; 07-ORD-055; 09-ORD-101; 09-ORD-199. As in these decisions, the Attorney General finds that issues concerning the value of information contained in public records produced for inspection are not justiciable in this forum, and therefore declines to assign error on that basis. If the Loarings have evidence to support a claim of willful concealment or tampering, they might wish to consider the options available under KRS 61.991(2)(a); however, such issues cannot be resolved here, nor does the record on appeal contain any evidence of such wrongdoing. 09-ORD-095.
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:
Russell and Sharon LoaringPaul F. RoyceMona S. Womack
Footnotes
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