Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Environmental Protection's Division of Waste Management violated the Open Records Act in responding to Bradley S. Hayes' June 14, 2012, request for copies of "boring logs one and two that were done on 8-11-04." These logs, Mr. Hayes explained, were not disclosed to him when the Division responded to his earlier open records request by providing him with its "entire file related to the [Underground Storage Tank] activities" for property owned by his family. In the absence of a statute, regulation, or caselaw directing the Division to maintain the requested boring logs, or proof that the boring logs were required for the Division to discharge its duty, the Division is not obligated to provide an explanation for its inability to produce the logs. Having so concluded, we nevertheless recognize that, to its credit, the Division provided Mr. Hayes with a plausible explanation for its inability to produce these boring logs and took additional, albeit unsuccessful, steps to secure the logs from Arcadis, the environmental contractor that performed the sampling.
In his June 14 request, Mr. Hayes acknowledged receipt of the Division's file but focused on the omission of "boring logs one and two that were done on 08-11-04," asking that the Division explain this omission. The Division promptly responded that efforts were underway to locate the boring logs. In subsequent correspondence, the Division explained that these borings may not have been logged since they were "advanced through backfill material below the bottom of the UST tank pit" and "there is not a need to characterize clean backfill material." Dissatisfied with the Division's explanation, Mr. Hayes initiated this appeal.
In supplemental correspondence directed to this office after Mr. Hayes filed his appeal, the Division confirmed that the boring logs "are not in the Division's files or possession and the Division does not know if they have ever been so." The Division observed:
[O]n June 29, 2012 and July 6, 2012, the Division provided Mr. Hayes with access to the entire Division file related to Al# 63087. The requested boring logs are not in that file and their absence is not within the knowing control of the Division. It should be noted however, that these particular boring logs were not necessary for Underground Storage Tank Branch review of the sampling work at issue and, thus, the boring logs likely never existed in the Division's records. [Footnote omitted.]
Nonetheless, the Division has contacted the environmental contractor that performed the sampling on Mr. Hayes' property on behalf of Chevron, the owner of the removed USTs. That company is now Arcadis, but at the time of the sampling was named BBL. The Division has requested that Arcadis attempt to locate copies of the boring logs if, in fact, they ever existed. This effort has been communicated to Mr. Hayes, but the contractor has thus far been unsuccessful. The Division first contacted Arcadis on June 19, 2012. Arcadis employee Jason Luckett reported on June 25, 2012 that neither Arcadis nor the driller had the records for the boring logs, but that Arcadis had contacted Chevron and requested that Chevron search their archived files for the records. The UST Branch Manager, Edward Winner, contacted Arcadis Program Manager Gregory L. Cutshall on October 10th, 2012 and again requested the boring log records. Mr. Cutshall immediately contacted Chevron and was told that Chevron would respond to the request, with an estimated response time of 10 days. As of this date, Mr. Hayes has been provided with all documents relevant to his request currently possessed by the Division. The Division will, of course, provide Mr. Hayes with copies of the boring logs should they be located by the contractor through Chevron.
In a footnote, the Division again explained that "[t]he two soil borings for which logs are requested were from re-sampling of the tank-pit bottom and, thus, the logs would only describe clean backfill material rather than the native soils being analyzed for contamination. Accordingly, they would not provide relevant information."
On October 22, the Division provided Mr. Hayes and this office with an email from a representative of Arcadis concerning the nonexistence of the requested boring logs. In it, Arcadis explained:
In a letter dated April 19, 2004, the KYDEP requested re-sampling the floor (Front Bottom) from UST Pit # 3. The re-sampling was based on adsorbed-phase concentrations exceeding allowable levels under the 401 KAR 42:080 (1996 Regulations) . The UST Closure Assessment conducted in May 2002 indicated adsorbed-phase concentrations exceeding the Class III, Soil Table 1 allowable levels (2 mg/kg for benzene) at the following locations:
Front Bottom: Benzene: 2.45 mg/kg
On August 11, 2004 BBLES advanced soil borings (B-1 and B-2) to a total depth of 10 feet (2 feet below original UST pit floor) near the center of the former UST pit. The UST pit had previously been lined with plastic sheeting and the stockpiled soil generated from the UST removal was returned to the UST pit. After the stockpiled soil was placed in the UST pit the soil was covered with plastic sheeting and the former UST pit was backfilled to grade with gravel.
Soil samples from the 8-10 foot sample intervals in borings B-1 and B-2 were submitted for laboratory analysis to evaluate adsorbed --phase concentrations from the floor of the former UST pit.
Boring logs for B-1 and B-2 were not requested in the scope of work. The sole purpose of collecting soil samples from B-1 and B-2 was to gather additional data to determine if undisturbed soils situated at the bottom of the former UST pit were impacted above regulatory criteria. There was no technical value in preparing boring logs that had been advanced through disturbed fill material, no regulatory expectation was communicated to complete the boring logs; and therefore, no technical basis for preparation of the logs in this circumstance.
The Division thus reiterated that no boring logs were prepared and that Mr. Hayes received all documents held by the Division of Waste Management. In our view, the Division was required to do no more.
In a recent line of open records decisions, this office recognized that the existence of a statute, regulation, or caselaw directing the creation/possession of a record by a public agency creates a presumption of the record's existence which can only be overcome by the agency through an explanation for the record's nonexistence. 11-ORD-074, cited in 12-ORD-171, p. 3. The Kentucky Court of Appeals approved this position in
Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011), declaring that when an agency cannot produce records that are presumed to exist, "the person requesting the records is entitled to a written explanation for their nonexistence. " Citing 10-ORD-078.
This question presented in this appeal is distinguishable from the question presented in the referenced open records decisions. Mr. Hayes identifies no statute, regulation, or case requiring the Division to create, possess, or maintain the requested boring logs. Nor has he made a showing that the Division could not discharge its duty without them. He is not, therefore, entitled to an explanation for the Division's inability to produce them. Nevertheless, the Division provides a plausible explanation for the nonexistence of the logs and that explanation is supported by the environmental contractor, Arcadis. Indeed, before Arcadis confirmed the records' nonexistence, the Division went to great lengths to locate the records in the hopes of satisfying Mr. Hayes' request. In so doing, the Division went above and beyond its statutory duty.
We find no error in the Division of Waste Management's disposition of Mr. Hayes' request and no evidence in the record on appeal to support his claim that the requested boring logs are being concealed. If Mr. Hayes possesses evidence of concealment, and wishes to pursue this claim, he may present the evidence to the appropriate prosecutorial authorities pursuant to KRS 61.991(2). 11-ORD-056; 11-ORD-013; 07-ORD-234; 99-ORD-100; 93-ORD-24. Our review is confined to deciding whether the Division violated the Open Records Act in responding to Mr. Hayes' request, and, in our view, it did not.
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:
Bradley S. HayesTim HubbardChristopher T. Short