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 Office of the Governor violated the Kentucky Open Records Act in the disposition of Bruce M. Tyler's June 20, 2013, request for "any and all correspondence between you and the University of Louisville and its officers and agents and with the Kentucky Council on Postsecondary Education and any public officer, including attorneys, whether internal or external," concerning the "University of Louisville's requirement to teach six cases per year versus the Redbook rule of Master of Arts degree granting Departments." Mr. Tyler also requested "telephone logs and any and all emails by you or any and all officers of the State and University or its agents or representatives." Having received no response, Mr. Tyler initiated this appeal by letter dated July 9, 2013, reiterating that he was requesting any correspondence the Governor "may have had in regard to my concerns about the University of Louisville and the Counsel [sic] on Postsecondary Education on the U of L Redbook/Constitution rule that Ph.D programs teach only four classes; M.A. programs, like History, teach only five classes; and B.A./B.S. degree departments teach 6 classes." If the Governor "did nothing," Mr. Tyler asserted, "then he must send me that s [sic] his response despite his role as an officer of the Kentucky Colleges and University system."
The Office of the Governor violated the mandatory language of KRS 61.880(1) in failing to issue a written response to Mr. Tyler's request within three business days of receipt, albeit inadvertently. Because the relevant statutory language is unambiguous, the law regarding application of this provision is well-established, and the agency has implicitly acknowledged this procedural error on appeal, the Attorney General will not belabor this issue. See 12-ORD-211. On appeal the Office of the Governor ultimately advised Mr. Tyler that no responsive documents exist in the custody or possession of the agency, with the exception of those few it provided, following a "search using methods which [could] reasonably be expected to produce the record[s] requested." 05-ORD-109, p. 3. Accordingly, this office has no basis upon which to find the agency committed a substantive violation of the Open Records Act in the absence of any legal authority mandating their creation or evidence from which their existence can be presumed. See 07-ORD-033; 12-ORD-231. The Office of the Governor cannot produce that which it does not have nor is the agency required to "prove a negative" in order to refute a claim that certain records exist in the absence of a prima facie showing by the requester.
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005)("before a complaining party is entitled to such a hearing, he or she must make a prima facie showing that such records do exist"); 1 see 13-ORD-084 (copy enclosed) for a detailed analysis.
Upon receiving notification of Mr. Tyler's appeal from this office, Deputy General Counsel Michael T. Alexander responded on behalf of the Office of the Governor, confirming that a request was received on June 24, 2013, but was "inadvertently sent to our constituent services department and forwarded to CPE for response." By copy of his July 17, 2013, response letter, Mr. Alexander advised that "we are providing Mr. Tyler with all records in the Office of the Governor that are responsive to his request. There are no additional documents and/or records in the Office of the Governor responsive to this request." Attached to said letter was a document entitled "Journal Entries Case # 158409," listing four entries dated June 24, 25, and 27 (two), 2013, 2 respectively, in addition to a copy of Mr. Tyler's July 9 Open Records Appeal, including attachments (April 25, 2013, letter to Governor Steve Beshear and his June 20, 2013, request directed to Governor Steve Beshear). Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, and to facilitate a correct resolution of the instant appeal, this office subsequently asked Mr. Alexander to please identify the steps taken by the agency to determine whether any documents responsive to Mr. Tyler's request existed in the possession of the Office of the Governor and to confirm that only the correspondence sent by Mr. Tyler sent and the document entitled "Journal Entries" were located when that search was conducted. Mr. Alexander advised that in reaching that determination, "we checked our CC6 System and personally contacted persons in our constituent services department regarding this request. As previously indicated, Mr. Tyler's request was sent to CPE for a response." As noted on the journal entry, he continued, "we asked CPE to provide us with a copy of the response they sent to him in May but we never received anything. Please note that the journal entry is sent to CPE through the CC6 System. Therefore, there are no telephone logs or e-mails regarding this matter." Upon further inquiry, Mr. Alexander confirmed that his agency not only does not have any telephone logs or e-mails, etc. regarding the request but, more precisely, has none "pertaining to U of L and the KCPE as it relates to Mr. Tyler's request."
Because the appellant has "produced no affirmative evidence . . . that the agency possesses such records as he has 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. 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. Moreover, this office has generally declined to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 4.
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. The right to inspect records only attaches 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 (or advising that it lacks possession) and explaining why, as the Office of the Governor ultimately did here. On many occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 99-ORD-98; 09-ORD-029; 11-ORD-069. The agency now finds itself in the position of having to "prove a negative" in order to conclusively refute Mr. Tyler's claim that additional responsive documents may have been created or should currently exist. Bowling at 341. No prima facie showing has been made.
However, this office has 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." 11-ORD-074, p. 3. Mr. Tyler has not cited any objective proof in support of his claim. 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 has also recognized 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 at the administrative level, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4; 12-ORD-038. No such authority has been cited or independently located here. Thus, assuming the agency made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested," 3 as the record suggests, it complied with the Act, regardless of whether the search yielded any results, in affirmatively indicating that no records were located. 05-ORD-109, p. 3; OAG 91-101; 01-ORD-038. See 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring agency to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074). In the absence of the requisite prima facie showing, or any facts or evidence to suggest that additional records were created or maintained in this case, the agency's ultimate disposition of Mr. Tyler's request is affirmed in accordance with Bowling , above , and prior decisions of this office.
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:
Bruce M. TylerMichael T. Alexander
Footnotes
Footnotes
1 Compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence"); 12-ORD-195.
2 The June 24 entry signifies the case being opened; the June 25 entry description indicates that a staff member named Mae Miles asked CPE to "forward me a copy of the response that was sent to Mr. Tyler from your office in May. He is stating that he has not received a reply and I do not have a copy of your reply. Thanks." On June 27 Ms. Miles advised that she "[t]alked with Pegge Woolums, she stated that CPE is having ongoing discussion regarding Mr. Tyler's issue." The second entry on that date indicated the case was "Closed by mae.miles."
3 Our analysis turns not on whether the fruits of the agency's search met the requester's expectations, but whether it conducted an adequate search." 06-ORD-042, p. 5. Accordingly, the Office of the Governor should have specifically identified the steps taken to identify and locate any such records per the standard of 95-ORD-96 in order to fully discharge its duty; however, the Office of the Governor ultimately did so upon request and "[i]n 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). See 11-ORD-041.