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 Finance and Administration Cabinet, Department of Revenue violated the Kentucky Open Records Act in denying John T. Harris's December 6, 2012, request for "copies of records documenting a refund of Kentucky Withholding Taxes issued to Jefferson County Public Schools in the last three months of 2002." 1 Having received no response, Mr. Harris initiated this appeal by letter dated January 9, 2013, in response to which Department counsel Stephen G. Dickerson initially advised that Judy Ritchie, to whom the request was directed, had never actually received the request nor had anyone in the Department, presumably because it was mailed to "High and Mero Street" rather than "501 High Street," which is the correct address. Mr. Dickerson further explained that Sarah E. Pence is the individual to whom requests made under the Open Records Act should be directed. This office has consistently acknowledged the inability to conclusively resolve a factual dispute concerning actual delivery and receipt of a request; however, it stands to reason that a public agency cannot respond to a request(s) which it does not receive, and the evidence presented, including the affidavits of Ms. Ritchie and Ms. Pence, 2 and Mr. Dickerson's explanation concerning the address to which Mr. Harris directed his request, supports the agency's position. See 03-ORD-052; 05-ORD-022; 07-ORD-178; 08-ORD-150; 11-ORD-012. This office has no basis on the facts presented to find that the Department violated KRS 61.880(1).
With regard to accessibility of records that would contain the information requested, Mr. Dickerson asserted that KRS 131.190 prohibits disclosure "insofar as the information may have to do with the affairs of the person's business." Finally, "and most importantly," Mr. Dickerson advised that "any data concerning the refund of taxes to JCPS, or for that matter, any data concerning the refund of taxes for Mr. Harris for the year 2002" would no longer exist because such records would have been properly destroyed in accordance with applicable disposition instructions contained in the Department of Revenue Records Retention Schedule, a copy of which Mr. Dickerson attached to his January 23, 2013, response. The Department subsequently provided us with additional information regarding the specific records series upon which it was relying and KRS 131.190 upon request, outlined in detail below, to assist us in resolving the question presented. Inasmuch as the Department cannot produce that which it does not have, and has established that any records potentially responsive to Mr. Harris's request were properly destroyed per the Department of Revenue Records Retention Schedule, this office affirms the agency's denial.
Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office asked the Department for additional information to assist us in reaching a correct resolution of this matter. Our inquiries and the responses of the Department appear, in relevant part, below:
1) [P]lease identify which type of record would contain the requested information, and which of the Records Series listed on the Department of Revenue Records Retention Schedule that your agency relied upon as the basis for destroying "records documenting a refund of Kentucky Withholding Taxes issued to [JCPS] in the last three months of 2002"?
2) [P]lease explain how, in the Department's view, disclosing the amount of such a refund to JCPS would reveal "the affairs of the person's business" within the meaning of KRS 131.190.
3) Any insight you can provide regarding the process for issuing such refunds, including, for example, the individual to whom a refund of withholding taxes would have been issued on behalf of JCPS, would also be very helpful given the limited context we currently have[.]
The Department cannot produce nonexistent records for inspection or copying nor does the Department have to "prove a negative" in order to refute a claim that such records were created to begin with during the specific time frame or currently exist in the possession of the agency. Having ultimately confirmed that "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested" was conducted for certain records that were potentially responsive (the refund check, if any, information contained in CARS or a RDS printout) , 3 05-ORD-109, p. 3, and provided a credible, detailed explanation of the reason that any records falling within Records Series 04830 were properly destroyed in the normal course of business per the agency's Records Retention Schedule, the Department satisfied its burden of proof under KRS 61.880(2)(c).
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), when it fails to advise the requesting party whether the requested records exist, 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 and explaining why, following a reasonable search, as the Department has maintained here. This office has expressly so held on many occasions. 04-ORD-205, p. 4; 99-ORD-98; 12-ORD-056. 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 as noted 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; 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 its burden of proof under KRS 61.880(2)(c) , a public agency must fully explain why it cannot produce the record(s) being sought and under what authority the record(s) was destroyed, if appropriate. 11-ORD-104, p. 5. Loss or destruction of a public record(s) creates a rebuttable presumption of records mismanagement. Id. However, the Department ultimately explained in detail why no refund check (s), CARS information, or RDS printout exists and rebutted that presumption here as to records falling within Records Series 04830 (Employer Withholding Tax Return File). When, as in this case, a public agency denies that any responsive records currently exist and fully explained why, and the unrefuted evidence (including the applicable retention schedule) presented confirms, rather than refutes that position, further inquiry is unwarranted. 05-ORD-065, pp. 8-9.
Having denied that responsive documentation exists, the Department now finds itself in the position of having to "prove a negative" in order to conclusively refute a claim that responsive records were not only created but also still exist. However, 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." 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 responsive 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., 07-ORD-188; 08-ORD-189; 11-ORD-209; 12-ORD-012. The record on appeal is devoid of any evidence to confirm that any responsive records were created; however, even assuming that a refund was issued to JCPS during the specified time period, the Department has confirmed that copies of refund checks are not received or maintained, refunds were not issued electronically during the relevant period of time and thus no information was found in CARS, the RDS printouts containing such information only date back to 2008, and the employer's tax returns and the annual reconciliation were properly destroyed prior to Mr. Harris's request.
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; 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"). The Kentucky Court of Appeals approved this position recently in
Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011), declaring that when a public agency cannot produce records that are presumed to exist, "the person requesting the records is entitled to a written explanation for their nonexistence. " In this instance, the agency has explained in detail the locations that were searched in a good faith effort to locate any existing records that were potentially responsive and provided a credible written explanation for the lack of records presumed to exist, namely that any such records were properly destroyed in the normal course of business per the agency's Records Retention Schedule. Nothing else is required. In light of this determination, further discussion of whether KRS 131.190 was properly invoked here is unnecessary.
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:
John T. HarrisJudy RitchieStephen G. Dickerson
Footnotes
Footnotes
1 According to Mr. Harris, "[r]ecords show that an electronic wire transfer was issued to the Department of Revenue as well as a Check # 974713 creating an over payment in the amount of $ 7,144,740." If the refund to JCPS was issued electronically, Mr. Harris continued, "please show the name, bank, department or the person [to whom] it was directed during that time in 2002."
2 Both Ms. Ritchie and Ms. Pence denied ever having received a request from Mr. Harris; likewise, neither individual was aware of such a request until Mr. Dickerson informed them of Mr. Harris's appeal. Ms. Ritchie further confirmed that if she had received such a request, she would have forwarded it via the proper channels to Ms. Pence for disposition. The Act requires nothing more.
Ms. Pence further confirmed that "no information is in the possession of the Department that would fulfill Mr. Harris' request for information. Said information -- "records documenting a refund . . . if ever in existence at all, were destroyed pursuant to the Department's retention schedule."
3 In assessing the adequacy of an agency's search we 'need not go further to test the expertise of the agency, or to question its veracity, when nothing appears to raise the issue of good faith.'" 95-ORD-96, p. 7, citing Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977). Here, the Department specifically identified the steps taken to identify and locate any such records per the standard of 95-ORD-96. Compare 10-ORD-087.
4 See KRS 61.8715.
5 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."