Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Brian Wallace initiated two separate appeals challenging the disposition by the Montgomery County School District ("District") of three separate requests that he submitted on July 10, 2014, July 22, 2014, and August 7, 2014, respectively. First, Mr. Wallace requested "official documentation relating to 2014-15 school year employment status" and "end 2013-14" of five named individuals, to "include job positions." Second, he requested the "documentation related to the dollar amounts paid by the Montgomery County Schools, or its insurance carrier(s), for ALL lawsuits paid since June 1, 2011, broken down by individual lawsuit, " including "cases that settled prior to going to trial," as well as "the 'running balance' of the insurance policy(ies) over this time." Third, he requested the teaching schedules for the 2014-2015 school year at Montgomery County High School for six named individuals, to include their lunch breaks, planning periods, and the number of students in each of their classes. Mr. Wallace asked that "schedules of any other teachers in the Health/PE department, as well as the ASP [Alternative to Suspension] teacher, at the high school" also be included and that "[i]f any of them are on overloads, documentation supporting that should be included."
In his August 29, 2014, letters of appeal, Mr. Wallace specifically argued that the District failed to provide him with complete information for Barry Follett, omitting information "related to his known long-term substitute ASP position at Montgomery County High School during the 2013-2014 school year" and information regarding his employment for the 2014-2015 school year. Mr. Wallace further asserted that "[d]ozens of pages were provided that were irrelevant to the information requested, " which, in his opinion, was an attempt to increase costs associated with fulfilling his July 10 request, and that subverted the intent of the Open Records Act within the meaning of KRS 61.880(4). Lastly, Mr. Wallace found it "unimaginable" that the District does not keep records containing the "running balance" though such information "would easily be obtainable from the insurance provider(s)" if not. 1
Superintendent Joshua E. Powell responded to Mr. Wallace's appeals on behalf of the District. He initially advised that on July 16, 2014, Assistant Finance Manager Candace S. Hunt notified Mr. Wallace via e-mail that documents responsive to his July 10 request were available during regular business hours at the Central Office. 2 Superintendent Powell included a copy of her e-mail, in which Ms. Hunt further advised Mr. Wallace of the total number of copies and the cost of postage if he wished to have the records mailed. On July 21, 2014, the District received Mr. Wallace's payment and the records were mailed to him. According to Superintendent Powell, the September 27, 2011, agenda and minutes that were provided to Mr. Wallace document that Mr. Follett was hired as a substitute teacher. Mr. Follett continues to be employed as a substitute teacher, Superintendent Powell continued, and is considered an employee of the District who is eligible to substitute in any school in the District. Since being employed as a substitute teacher by the District, Mr. Follett has substituted in other schools within the District. Superintendent Powell explained that Mr. Follett continues to be employed in this capacity and remains eligible to substitute in any school within the District; accordingly, the records provided to Mr. Wallace do, in fact, relate to his employment for the 2014-2015 school year.
In addressing Mr. Wallace's claim that irrelevant records were provided, Superintendent Powell advised that personnel board agendas were provided, as well as the minutes of the board meetings. The 2014-15 appointment list with the June 24, 2014 personnel board agenda did not show job positions, which Mr. Wallace requested, so the District provided the personnel agenda and minutes from when each person was hired to document the positions that employees held. Unnecessary documentation was not intentionally provided. Complete minutes were provided, rather than excerpts, "to provide dates, actions taken, votes, and personnel lists," which appear on various pages of the minutes. The District maintained that it provided the official documentation per Mr. Wallace's request.
Superintendent Powell advised that he provided Mr. Wallace with a copy of the settlement agreement from the one lawsuit since June 1, 2011, in which a settlement was paid by or on behalf of the District in response to his July 22 request, and notified him that none of the other information requested exists in the records of the Montgomery County Board of Education. He noted that Chief Administrative Officer Jacqui Johnston had received an e-mail from David Livingston, Account Executive/PEI Vice President on September 10, 2014, confirming that none of the other information requested, i.e ., the "running balance," is contained "in any report generated by the insurance company or our agency." Superintendent Powell therefore maintained that the District complied with relevant provisions of the Act in stating that no responsive documents exist (see note 1).
With regard to Mr. Wallace's August 7 request for teaching schedules, etc. Superintendent Powell advised that Ms. Hunt had explained to Mr. Wallace by e-mail that lunch schedules had not been finalized yet on August 7 as that was the first day of school. Upon receipt of payment, responsive documents were mailed to Mr. Wallace on August 18, for all positions except ASP teacher, because there is currently not a full-time ASP teacher at the high school. Ms. Hunt advised Mr. Wallace that "there are no schedules in Infinite Campus for this position." 3 MCHS Principal Shannon White advised Ms. Hunt via e-mail dated August 29, that the high school is using two substitute teachers to perform the ASP duties, and listed their work schedules. Ms. Hunt forwarded this e-mail to Mr. Wallace that day. One substitute works in the mornings and the other works in the afternoons; consequently, neither substitute takes a lunch break. Because of the nature of the position, their schedules are not available in Infinite Campus nor does either substitute have a planning period. Accordingly, the District maintained, in sum, that all existing responsive documents have been provided to Mr. Wallace in response to each of his three requests.
In reply, Mr. Wallace maintained that complete minutes "are well beyond what was requested [on July 10]." Therefore, Mr. Wallace reiterated his request to be reimbursed the approximately $ 10.00 for copies and postage costs for the "unnecessary documents." He further maintained that the District provided "incomplete information" relative to his August 7 request, which did not include the names of the ASP teachers or indicate whether they are "long-term substitutes that perform these same duties at the same times of day on a day-to-day basis." According to Mr. Wallace, the District's response was not a "good faith attempt to comply" with his August 7 request. Superintendent Powell reiterated, in response to his first contention, that "minutes and personnel agendas are considered official documentation of records that we have on file for his request. Therefore, we complied with Mr. Wallace's open records request by sending him the official documentation we had on file and charged him for the fees associated with copying the documents." Superintendent Powell further emphasized, in response to Mr. Wallace's second contention, that "[t]here was not a full time ASP teacher in this position at the start of school." As previously indicated, August 7, the date of Mr. Wallace's request, was the first day of school, and the District had not decided whether this would be a long-term substitute position at that time. In attempting to comply with Mr. Wallace's request for the schedule of the ASP teacher, Ms. Hunt ultimately asked Principal White for the schedule of the substitute teacher of ASP. Superintendent Powell reiterated that the District has provided Mr. Wallace with all existing responsive documents.
This office has consistently recognized that "objections to alleged inaccuracies and omissions in the records disclosed" cannot be resolved in the context of an Open Records Appeal. 10-ORD-178, p. 2; 06-ORD-098; 09-ORD-101. 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 the Attorney General "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, when some of the documents requested are disclosed, 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; 10-ORD-195. 4 Although Mr. Wallace may believe that additional responsive documents were, or even should have been created, ultimately the Attorney General has no basis to depart from that position here. In this regard, the current dispute "is factual, and not legal, in nature." 06-ORD-266, p. 6.
As the Attorney General has also 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 Act in affirmatively indicating that certain records do not exist following a reasonable search, and explaining why, as the District ultimately did. This office has expressly so held on many occasions. 04-ORD-205, p. 4; 12-ORD-087.
Having denied that additional responsive documentation exists, the District now finds itself in the position of having to "prove a negative" in order to conclusively refute a claim that such documentation exists in the agency's possession as of the request date. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005); 11-ORD-081. Addressing this dilemma, 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 public records in the absence of a prima facie showing that such records did, in fact, exist in the possession of the agency. See 07-ORD-188; 11-ORD-209; 12-ORD-012.
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. 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. Mr. Wallace has not cited any objective proof or persuasive authority in support of his position that additional records not only should, but must have been created on the date of his request, and were improperly withheld. On appeal the District provided a credible written explanation for the lack of additional records. Nothing else is required. See Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (holding 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" ).
In addition, this office finds that Mr. Wallace cannot now complain that he was provided with too many records in response to his July 10 request given that he asked for "official documentation" regarding the employment status of multiple individuals for the 2013-2014 and 2014-2015 school years, including job positions. Compare 02-ORD-150. Resolution of this issue turns on KRS 61.872(3), pursuant to which, "A person may inspect the public records: (a) During the regular office hours of the public agency; or (b) By receiving copies of the public records from the public agency through the mail. " However, a public agency is required to mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located only "after he precisely describes the public records which are readily available within the public agency [.]" (Emphasis added). See 12-ORD-049. In construing this provision, the Attorney General has consistently observed that KRS 61.872(3)(b) places a greater burden on requesters who wish to access public records by receipt of copies through the mail. 99-ORD-63, p. 3 (citation omitted). Whereas KRS 61.872(2) merely requires a requester to "describ[e]" the records which he wishes to access by on-site inspection, 5 KRS 61.872(3)(b) requires the requester to "precisely describe" the records which he wishes to access by mail. 6 In other words, a requester satisfies the second requirement of KRS 61.872(3)(b) if he/she describes in "definite, specific and unequivocal terms" the records he/she wishes to receive. Id. This Mr. Wallace did not do. See 08-ORD-147.
Because the records are located in Montgomery County, Kentucky, and Mr. Wallace resides in Fayette County, Kentucky, he satisfies the first requirement of KRS 61.872(3)(b). However, Mr. Wallace was entitled to receive "a copy" of any responsive records by mail only after he "precisely describe[d]" the records, which must be "readily available within the agency."
Because Mr. Wallace failed to satisfy this requirement, he could have been required to conduct on-site inspection of the records prior to receiving copies even though he was otherwise qualified to receive copies by mail under KRS 61.872(3)(b); however, the District was not entitled to deny his request entirely nor did it. See 12-ORD-049. Rather, the District made a good faith attempt to provide Mr. Wallace with access to all of the "official documentation" potentially responsive to his broad request in the possession of the agency. The District notified Mr. Wallace that he could either pick up the records in person during regular office hours or be provided with copies via mail after he sent payment for the copies and postage. Mr. Wallace chose the latter option rather than exercise his right to conduct on-site inspection of the potentially responsive documents prior to paying for copies in order to ensure that he paid for and received only those records that were sufficient in his view. Under these circumstances, the Attorney General has no basis upon which to find that the District subverted the intent of the Open Records Act. See 02-ORD-17 (if requester wished to avoid payment for, and receipt of unnecessary copies, he could have exercised the option of conducting onsite inspection of the records to extract only the information he sought); compare 07-ORD-105 (agency subverted the intent of the Act by "commingling nonresponsive records with responsive records so as to create unnecessary impediments to effective review and by asserting that it had no duty to produce only responsive records").
Either party may appeal this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Under 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.
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