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 Knox County Public Schools violated the Kentucky Open Records Act in denying the May 2, 2012, request jointly submitted by Robert Lockhart and Bob Terrell for "minutes of Knox County Board [of Education] when they discussed and voted to [redistrict] or split half of District 5" and "a copy of the 2000 census report used to report loss or gain." In a timely written response, Superintendent Walter T. Hulett advised that "there has been no redistricting or split of District 5 since my arrival as Superintendent in 2006," but advised that if they were "aware of a specific board meeting or date at which this item may have been discussed and/or action was taken, please let me know and we will be glad to look at that item." Superintendent Hulett further advised that KCPS does "not have a copy of the 2000 Census Report. " Because Superintendent Hulett ultimately confirmed that a search for minutes dating back to 2000 was conducted, and no responsive minutes were located, nor has any evidence been presented to refute his assertion that no such action was recorded in any of the potentially responsive minutes, particularly since the appellants have confirmed that no such action was ever taken during a public meeting of the Board, this office has no basis upon which to find that KCPS violated the Open Records Act. KCPS cannot produce nonexistent records for inspection or copying, nor is the agency obligated, under existing case law, to "prove a negative" in the absence of any evidence from which their existence can be presumed. Because the appellants have "produced no affirmative evidence . . . 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.
Noting for the first time that the "decision to redistrict District 5 and transfer 6,500 persons from the District to other Districts must have been made in or just before the 2000 period," Mr. Lockhart and Mr. Terrell initiated this appeal. They further asserted that "there had to have been census data used in making this" decision. "As a member of the Board for twenty-four years including this period," however, Mr. Lockhart noted that "this redistricting decision was a total surprise to me and many persons living in District 5. It is our desire to find out when and on what basis this redistricting decision was made." Upon receiving notification of this appeal, Superintendent Hulett reiterated that "the material they requested does not exist. We have searched the 1995-2000 board minutes as he requested when he was a board member. There is nothing in any Knox County Board minutes that suggest[s] that the districts in question changed." Furthermore, Superintendent Hulett advised, "we do not have in our possession the 2000 US Census. . . . We have no other resources to research other than the board minutes for this information. As Mr. Lockhart indicated in his letter[,] 'I cannot recall this subject being approved or even discussed in regular meetings.'"
In reply to Superintendent Hulett's May 21, 2012, letter, the appellants advised that "[f]urther investigation indicates that Mike Corey, Clerk of Knox County advised [Mr.] Lockhart that he has been in office since 1999 and is not aware of any action of redistricting. " The appellants believe "the first election this change was effective was the 2004 election." Mr. Lockhart, former Board member from District 5 "was unaware of this change [until] the election." Given this information, the appellants inquired 1 as to whether "any approval minutes between 2000 and 2005" would exist; accordingly, this office asked Superintendent Hulett "to clarify whether any such minutes exist in light of this attempt to specify the particular minutes being sought." Superintendent Hulett reiterated that KCPS "looked at the board minutes and there is no action recorded to indicate any redistricting. " He further advised that he "know[s] there has been no redistricting" since 2006 when he became Superintendent. If the Knox County Clerk "has made no changes to the voter precincts," he continued, "and the Knox County Board of Ed. took no action," KCPS would not possess any minutes reflecting such action.
This office subsequently asked Superintendent Hulett to confirm that he conducted a search of all existing potentially responsive minutes, meaning not only those from 2006-present, but also the minutes from 2000-2005. He confirmed that a search dating back to 2000 was conducted. With regard to appellants' belief that redistricting must have occurred in the specified time frame, Superintendent Hulett suggested it may have resulted from "Knox County not signing the reciprocal agreement with Corbin Independent," 2 explaining that District 5 wishes "to elect two board members instead of one." 3 Mr. Lockhart and Mr. Terrell again requested "copies of Knox County School Board minutes in which District 5 was split with 6,500 people being transferred out of the District," in subsequent correspondence, noting that a "change of this magnitude surely would be recorded. " They "believe" it "was reflected in the 2004 School Board Elections" and "must have been based on the 2000 Census. " However, in closing they observed that "[i]t appears this action was not taken in an official Board meeting." Reiterating that the Knox County Clerk "cannot find any record either," the appellants ultimately asked "[u]nder what legal basis was this action taken?"
However legitimate their underlying concerns may be, such a question is not justiciable in this forum; rather, the narrow question presented is whether the KCPS violated the Open Records Act in the disposition of their May 2, 2012, request. In the "final analysis," the Attorney General assumes "a modicum of good faith from both parties to an open records appeal: from the requester in formulating his[/her] request, and from the official custodian in providing the records which satisfy the request." 93-ORD-15, p. 6; 07-ORD-190. Further, this office has consistently recognized that "it is not, in general, within our statutory charge to resolve questions of fact or to otherwise act as a trier of fact." 09-ORD-120, p. 4. Because KCPS cannot produce that which it does not have, nor is the agency required to "prove a negative," particularly in the absence of any irrefutable proof that such minutes were created to begin with and when the appellants concede that any redistricting apparently "was not taken in an official Board meeting," thereby validating the agency's position that no such action was memorialized in the minutes of any such meeting, this office has no basis upon which to find that a violation of the Open Records Act was committed. 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. Even assuming that such action was taken, whether the agency followed the required procedures or complied with governing law(s) 4 aside from the Open Records Act is not a question that can be resolved here. 5
As the Attorney General has consistently recognized, a public agency cannot provide a requester with access to nonexistent records or those which it 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 in affirmatively indicating that certain records do not exist following a reasonable search, as KCPS has repeatedly asserted here. This office 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, 6 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 disputes arising under the Open Records Act 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 currently exist, and that are in the possession or control of the public agency to which the request is directed. See 00-ORD-120. When, as in this case, a public agency denies that any responsive documents exist, and the evidence presented appears to confirm, rather than refute that contention, further inquiry is unwarranted. 05-ORD-065, pp. 8-9.
Having denied that responsive documentation exists, KCPS now finds itself in the position of having to "prove a negative" in order to conclusively refute a claim that responsive minutes were created. "The Attorney General is not empowered to ? resolve non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17. Rather, 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 v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005).
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." 7 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., 07-ORD-188; 08-ORD-189; 11-ORD-209; 12-ORD-012. Notwithstanding their seemingly legitimate related concerns, the fact remains that the appellants failed to make such a showing here and, in relevant part, strengthened the agency's position that no responsive minutes would have been created in acknowledging that no such action was ever taken during a Board meeting as it logically follows that no minutes reflecting the purported action would have been created. The appellants have not cited, nor is the Attorney General aware of any legal authority requiring KCPS to maintain a copy of the decennial U.S. census even assuming it ever possessed same. 8
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." 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. The appellants have not cited any objective proof or persuasive authority in support of their position that the requested minutes not only should, but must have been created, and thus are being improperly withheld, nor have they done so with regard to a copy of the 2000 U.S. Census, the existence and possession of which is premised on the apparently erroneous assumption regarding the action of redistricting. KCPS provided a credible explanation for the lack of records presumed to exist. No authority to the contrary has been cited or independently located here nor have contrary facts been presented.
Because the appellants 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 ("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"). Simply stated, "this office is not empowered to resolve a 'swearing contest' between the parties." 98-ORD-146, p. 6. In the absence of the requisite prima facie showing, the agency's denial of Mr. Lockhart and Mr. Terrell's request is affirmed in accordance with Bowling , above, and prior decisions of this office such as 07-ORD-188 and 12-ORD-012. To hold otherwise would result in KCPS "essentially hav[ing] to prove a negative." 07-ORD-190, p. 7.
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:
Robert LockhartBob TerrellWalter T. HulettCharley G. Dixon, Jr.
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