Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Holly Erwin initiated this appeal challenging the denial by the Rowan County Senior High School (RCSHS) of a request (dated May 26, 2014, but actually delivered on September 26, 2014) that she and Tracy A. Erwin made for a copy of "a thirteen page report generated as the result of a public meeting held at Rowan County Senior High School in the fall of 2013 concerning the Rowan County Cheerleading Squad and their coaches. " 1 The Erwins directed their written request to Dr. Ray E. Ginter, Principal, and Jen Williams, Athletic Director. According to Ms. Erwin, "At this open, public meeting, parents openly voiced concerns. We feel we are entitled to this report because it was an open and not closed public meeting and we are the parents of a Rowan county cheerleader." In a timely written response, Principal Ginter advised, on behalf of Superintendent/Records Custodian Marvin Moore, that he did take notes during the September 18 meeting for his own benefit, but "[t]here has not been identified any report of any length of a meeting you made reference to in the Fall of 2013."
On appeal Ms. Erwin advised that during a meeting with Ms. Williams on November 30, 2013, "she informed me of a thirteen page report generated from the public high school meeting. She told me a lot of my concerns were addressed in that report, although they were still going on." The Erwins again requested a meeting with Principal Ginter, through Superintendent Moore, after which they also met with Superintendent Moore. Following the meeting with Superintendent Moore, according to Ms. Erwin, Principal Ginter called her at home and informed her that she was on speaker phone and he was in the room with Assistant Principal Brandy Carver. When she asked him for a copy of the report, Ms. Erwin alleged, Principal Ginter asserted that he did not have to provide her with a copy "because it was an administrative report and it didn't directly concern" their daughter, at which point she decided to make a written request under the Open Records Act. Ms. Erwin maintained that Principal Ginter's response advising that no such report exists "is false due to the fact that the Athletic Director told us of its existence" and Principal Ginter acknowledged its existence in front of Assistant Principal Carver.
Upon receiving notification of Ms. Erwin's appeal from this office, Grant R. Chenoweth, counsel for the Rowan County Board of Education, responded on behalf of RCSHS, in relevant part, as follows:
It is submitted that Ms. Erwin simply misunderstood the conversations referenced in her appeal. Dr. Ginter has repeatedly affirmed that no report was created or generated from the meeting with parents referenced in Ms. Erwin's appeal. Through the course of reviewing various informal complaints made by parents of other students, which included allegations of violation of school policies and violations of fundraising rules, Dr. Ginter reviewed the pertinent policies which included those portions of the handbook [footnote omitted] created by the Kentucky Department of Education applicable to fundraising, as well as a handbook created at the School District level. Included within Dr. Ginter's collected materials are his personal notes generated during the course of his interaction with those other parents and a rulebook generated by the coach. No written grievance or complaint was ever filed, no investigative report was ever created, and no final report or response to any informal complaint was ever prepared. Instead, only Dr. Ginter's collected materials exist. If Ms. Williams referred to this collection of resources and notes as a 'report' during a meeting with Ms. Erwin, Ms. Williams was mistaken in her characterization. This was what Dr. Ginter attempted to convey to Ms. Erwin during the telephone call referenced in her appeal letter, by stating that all that existed were the notes and resources from his administrative review of the parents' complaints.
Based upon the foregoing, RCSHS reiterated "that no 'report' exists as a result of the meeting with parents referenced in Ms. Erwin's appeal. See 14-ORD-004 (collecting decisions regarding denial of access to non-existent records)." In reply, Ms. Erwin questioned the truthfulness of the agency's response, disputing that no investigation took place and noting that a second meeting was held at which Principal Ginter and Ms. Williams were both present and Principal Ginter, "flipping through the pages of a document touched on some of the issues." 2 Ms. Williams later told Ms. Erwin "of the thirteen page document that came from the complaints in the initial meeting." Ms. Erwin reiterated that when she asked Principal Ginter to provide her with a copy of the report, he stated "verbatim" that he did not have to provide it because "it is an administrative report." Because Ms. Williams was involved in the process from the beginning, Ms. Erwin believes that she was being truthful regarding the existence of the report in dispute. Ms. Erwin questioned what keeping only informal notes regarding multiple complaints that school rules were violated says about "their attitude toward the taxpaying parents."
Such a question is not justiciable in this forum. The Attorney General has consistently recognized that it is not "within our statutory charge to resolve questions of fact or to otherwise act as a trier of fact." 09-ORD-120, p. 4. Because RCSHS 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 a report was created, this office has no basis upon which to find that RCSHS violated the Open Records Act in denying The Erwins' request. 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. Notwithstanding any of Ms. Erwin's legitimate underlying concerns, whether the agency followed the required procedures or complied with governing law(s) aside from the Open Records Act is not a question that can be resolved here. See 12-ORD-110; 12-ORD-162.
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 if appropriate), as RCSHS 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, 3 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) . 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 record on appeal does not contain any objective proof to refute that assertion, further inquiry is unwarranted. 05-ORD-065, pp. 8-9; 12-ORD-087; 12-ORD-110.
Having denied that responsive documentation exists, RCSHS now finds itself in the position of having to "prove a negative" in order to conclusively refute a claim that a report was 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); 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" ).
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." 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 07-ORD-188; 11-ORD-209; 12-ORD-012. However, the Attorney General 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. The appellant has not cited any objective proof or persuasive legal authority in support of her position that the report in dispute not only should have, but must have been created, and is therefore being improperly withheld. RCSHS provided a written explanation for the nonexistence of the report presumed to exist. This office has no basis upon which to find that a violation was committed under these circumstances.
Because the appellant has "produced no affirmative evidence, beyond mere assertions, that the agency possesses [the report she has] requested, we do not have a sufficient basis on which to dispute the agency's representation that no such record[] exist[s]." 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); 12-ORD-087 (current dispute fundamentally amounts to "a 'records creation,' as opposed to a 'records access,' issue")(internal citation omitted). Simply stated, "this office is not empowered to resolve a 'swearing contest' between the parties." 98-ORD-146, p. 6; 12-ORD-065 (assumption that a "resignation letter" existed was reasonable in light of public official's acknowledged reference to such a letter but official provided a plausible explanation for the casual reference and no proof was offered to refute his position that no letter was ever created). In the absence of the requisite prima facie showing, or any objective proof to refute Principal Ginter's position, this office must affirm the agency's denial of the Erwins' request 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 RCSHS "essentially hav[ing] to prove a negative." 07-ORD-190, p. 7. Either party may appeal this decision by initiating action in the appropriate circuit court under 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.
Footnotes
Footnotes
1 By separate letter also dated May 26, 2014, but delivered on September 26, 2014, the Erwins, "As the natural parents of minor child Morgan Erwin," also requested "the minutes of a meeting held Thursday September 18, 2014 at Rowan County Senior High School between us, Mr. Ray Ginter - principal, Brandy Carver - assistant principal, Jen Williams - athletic director, Brenda Ballard and Shelby Halliday - coaches of the varsity cheer squad." The Erwins' "understanding" was that Ms. Ballard had written a letter concerning their daughter's bullying allegations, a copy of which they also requested. Principal Ginter provided the Erwins with a copy of an e-mail directed to Superintendent Marvin Moore on September 19, 2014, by Ms. Ballard, and copied to him, Assistant Principal Carver, Ms. Williams, Ms. Halliday, and someone identified as Lucy Moore, "Inst.Supvsr.," which RCSHS confirmed on appeal was the only document responsive to said request for a letter, but denied the existence of any responsive minutes. This issue was not raised on appeal, which Ms. Erwin filed "as the result of Principal Ray Ginter and Rowan County Senior High School denying a request for a thirteen page report," nor did this group constitute a "public agency" within the meaning of KRS 61.805(1) to which the requirement of producing minutes per KRS 61.835 applied. See 04-OMD-082. Accordingly, further discussion is unwarranted.
2 By letter dated October 29, 2014, Mr. Chenoweth again confirmed on behalf of RCSHS, after speaking with Superintendent Moore, that "the only correspondence he received in any format from Ms. Ballard concerning Ms. Erwin's daughter is the email which was provided to Ms. Erwin in response to her original record request." Superintendent Moore did have a hard copy of the subject e-mail in his possession during his meeting with the Erwins. Beyond this confirmation, RCSHS correctly advised that any other concerns raised in the letter had already been addressed in the agency's initial response to Ms. Erwin's appeal or were issues beyond the scope of the Act.
3 See KRS 61.8715.