Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Steve Kepley initiated this appeal challenging the disposition by the Cabinet for Health and Family Services (CHFS) of his undated request for multiple categories of records pertaining to his application for employment as a Shift Coordinator at Central State Hospital and records from the Equal Employment Opportunity (EEO) investigation file pertaining to his reported allegation of age, sexual orientation, and religious discrimination. 1 Mr. Kepley's appeal focused on items 3, 6, 7, and 9 of his request, which read as follows:
3) Copies of any references, education records of all applicants for the Unit Coordinator position;
6) Regarding Sonya Wheatley and Michelle Napier at Central State Hospital and Marjorie B. Payne CMF, EEO/Civil Rights Investigator I am requesting information regarding their highest level of education achieved and the specific area of study such as Associate in Accounting, Bachelors in Psychology, etc. I am also requesting copies of any and all classes, seminars, regarding Human Resources, Personnel, Labor Relations, Civil Rights, Equal Employment laws that have been taken by these employees. I am also requesting their annual compensation starting in 2010 and ending in 2013. Please list any change in compensation;
7) Annual compensation for employee Jerry Cameron beginning with hire date to ending as of July 2014. Please verify any new change in rate of pay or compensation;
9) A copy of the hiring policy or procedure from Seven Counties Services. A copy of grading system or scoring system used by personnel at Central State Hospital or Seven Counties Services for evaluating applicants for employment or promotion.
By letter dated September 4, 2014, Director Jay Klein, Division of Employee Management, advised Mr. Kepley that he was enclosing "a copy of the documents from the Cabinet's EEO Branch investigation file." Mr. Klein initially observed that requests for information, as distinguished from records, are beyond the scope of the Open Records Act, quoting prior decisions of this office. In addition, he generally invoked the following exceptions in responding to item 1, and then referred Mr. Kepley to "response and exceptions to response # 1" in addressing items 3 and 6 (among others not in dispute):
KRS 61.878(1)(i) provides an exemption for "Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency. " In accordance with the Open Records Act, specifically KRS 61.878(1)(a), information of a personal nature when the public disclosure would constitute an unwarranted invasion of personal privacy has been removed from the documents. Personal and private information includes social security numbers (95-ORD-151), employee identification numbers (09-ORD-049), home address (including home county and home county code)[,] home phone numbers (95-ORD-151)[,] physical characteristics (height, weight, disabilities) ( Zink v. Department of Workers[' C]laims , 902 S.W.2d 825 (Ky. App. 1994), race and gender (96-ORD-232 and 09-ORD-027)[,] date of birth (95-ORD-151), educational transcripts ([Family Educational Rights and] Privacy Act, 20 USC 1232), addresses of references (95-ORD-151), [n]on-governmental salary, family information (OAG 79-275[),] medical history (Americans with [Disabilities] Act), and driver's license numbers, as well as documents relating to health and life insurance, benefits and banking.
Mr. Klein also generally argued that interview questions and worksheets are preliminary and not subject to disclosure under KRS 61.878(1)(i), and may also be considered "examination materials" protected from disclosure under KRS 18A.020(4). The interview questions and answer sheets are properly characterized as "examination materials," he advised, "in that the documents are used to evaluate an applicant's qualifications for the position and may be used again in future interviews. To release the questions and answers provided by the applicants would give an unfair advantage to applicants in future interviews. " 2 Mr. Klein asserted that information relating to the unsuccessful candidate has been redacted from the Selection Worksheet per KRS 61.878(1)(a) and prior decisions by the Attorney General. 3 He released the Seven Counties Services' Personnel Requisition form to Mr. Kepley as responsive to item 9, but reiterated the agency's position relative to examination materials and KRS 18A.020(4) in denying access to a "grading or scoring system. " Examination materials would not have been responsive to item 3 of the request, or any of the others except items 1 and 9. Performance evaluations 4 (the accessibility of which CHFS nevertheless addressed) were apparently not responsive to Mr. Kepley's request, as none were included among the records identified as "all responsive Cabinet documentation" in the agency's response to a request later made by this office under authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3 for in camera review of the records withheld, a copy of which it also provided.
On appeal Mr. Kepley agreed that a public agency is not required to compile a list or create a record in order to comply with a request made under the Act, but noted that information such as the salary of a public employee is readily available in existing documents maintained by Human Resources. Mr. Kepley further acknowledged that confidential information could be properly redacted although educational backgrounds and salaries, he argued, could be easily obtained without creating a list or document in response to item 6 and/or 7 of his request. However, CHFS did not provide any documents responsive to items 6 and 7 of his request. With regard to item 3, Mr. Kepley advised that he received a copy of the reference for Mr. Cameron, but did not receive a copy of any references provided for him, which presumably were a part of his personnel file and open for inspection. Addressing the agency's response to item 9, Mr. Kepley did not dispute that any scoring system was properly withheld from disclosure, but noted that he did not receive a copy of "the hiring policy or procedure referred to by Ms. Payne in her conclusions."
Upon receiving notification of Mr. Kepley's appeal, CHFS initially relied upon its original response without further elaboration, but volunteered to provide all of the records for in camera review. In subsequently complying with our formal written request, CHFS belatedly made a few significant clarifications. In relevant part, CHFS advised:
. . . [Mr.] Kepley's sixth and seventh requests were for information. In those requests, Mr. Kepley asked for the "highest education level achieved" by Sonya Wheatley, Michelle Napier, and Marjorie Payne; as well as the "annual compensation" for Wheatley, Napier, Payne, and Jerry Cameron. Enclosed are the Cabinet records with said information. The Cabinet cannot provide salary information for Napier and Cameron, as they are contract workers who are not employed by the Cabinet.
[Mr.] Kepley requested copies of his own references [at item 3], and reiterates this request in his appeal. [Footnote omitted.] However, a reference check was not completed on Kepley when he was interviewed for the contract position in question. This is because he was not the successful candidate.
[Finally, Mr.] Kepley requested the "hiring policy or procedure referred to by Marjorie Payne in her conclusions [at item 9]. Payne's conclusions did not refer to any hiring policy or procedure. Instead, she referred merely to the "hiring documentation, " which has already been provided to [Mr.] Kepley. There is no separate hiring policy or procedure utilized by the interview panel.
CHFS cannot produce nonexistent records for inspection or copying; however, the inability of the agency to produce any references for Mr. Kepley in response to item 3, "salary information for Napier or Cameron" in response to items 6 and 7, or any "hiring policy or procedure" in response to item 9, 5 due to their apparent nonexistence was "tantamount to a denial and . . . it [was] incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9; 09-ORD-019. While it is obvious that a public agency "cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient. " 02-ORD-144, p. 3 (emphasis added); 09-ORD-145. Thus, "[i]f a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4. However, the Attorney General has consistently recognized that 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; 07-ORD-188.
While a response by a public agency violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," the necessary implication is that a public agency discharges its duty under the Open Records Act in affirmatively so indicating. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 03-ORD-205, p. 3. The Attorney General has expressly so held on many occasions. 04-ORD-205, p. 4; see 99-ORD-98; 09-ORD-145. It was "therefore incumbent on the [agency] to ascertain whether records exist[ed] that [were] responsive to [Mr. Kepley's] request, to promptly advise him of its findings, and to release to [him] all existing [nonexempt] records identified in his request." 03-ORD-207, p. 3 (emphasis added). In construing the mandatory language of KRS 61.880(1), the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). By failing to initially advise Mr. Kepley that certain responsive public records did not exist (following a reasonable search per the standard first articulated in 95-ORD-96), CHFS violated the Act. See 09-ORD-145; 12-ORD-162. However, CHFS cannot be said to have violated the Open Records Act in denying access to nonexistent records.
A public agency cannot produce that which it does not have nor is a public agency required to "prove a negative" in order to refute a claim that certain records exist.
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005); see also 07-ORD-188; 12-ORD-087; 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. Although the intent of the Open Records Act has been statutorily linked to the intent of KRS Chapter 171, pertaining to management of public records, and the Attorney General has applied a high standard of review to denials based on the nonexistence of records ever since KRS 61.8715 was enacted in 1994, 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). Because CHFS ultimately confirmed that no additional responsive documents exist in addressing items 3, (part of) 6, 7, and 9 of Mr. Kepley's request, following a reasonable search, and provided a plausible explanation for the nonexistence of those records in writing, the Attorney General finds no error in the agency's final disposition of those requests in the absence of any irrefutable proof that additional records were created or exist. The remaining question presented is whether CHFS violated the Act in declining to provide Mr. Kepley with access to any existing public records containing information responsive to items 6 and 7 of his request.
Early on, this office clarified that "[t]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. For this reason, the Attorney General has consistently held that "requests for information as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3, citing OAG 76-375. This office has also "long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request." 02-ORD-165, p. 4; OAG 76-375. In sum, "'what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it.'" 02-ORD-165, p. 5, quoting OAG 91-12, p. 5. 6 However, this office is also "not inclined to dismiss a request as insufficiently specific because the word 'information' appears where the word 'records' might otherwise appear." 11-ORD-050, p. 3. In lieu of creating a record, a public agency is required "to make any non-exempt records that may contain the information being sought available for inspection, assuming that any exist." 11-ORD-007, p. 3. "While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (original emphasis).
The Act contemplates that access to any existing record(s) be provided either by means of on-site inspection or by receipt of copies through the mail. See KRS 61.872(3)(b)(requiring the requester, whose "residence or principal place of business is outside the county" to "precisely describe" public records which are "readily available within the public agency" in order to receive copies by mail) . Mr. Kepley requested the latter. 7 He may not have provided a precise description of the records in dispute, as required to receive copies by mail, see 12-ORD-049, but CHFS had no difficulty identifying and locating public records containing at least some of the salary and educational information requested. See 10-ORD-219 (agency did not deny access based on lack of precision and could not "reasonably do so given the fact that it was able to locate records containing [at least some of] the information sought"). In other words, Ms. Kepley's request was "adequate for a reasonable person to ascertain [its] nature and scope," which is all that is required under the standard for onsite inspection set forth at KRS 61.872(2).
Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008); 10-ORD-189 (rejecting argument that request for all city employee payroll records for specific period was not adequately specific under Chestnut ); 11-ORD-007; 12-ORD-049; 13-ORD-029. 8
CHFS did not raise any substantive arguments in denying access to existing records containing salary/ payroll information and educational backgrounds (aside from redactions authorized under KRS 61.878(1)(a) and required under 61.878(4)). It is axiomatic that a "public employee's name, position, work station, and salary are subject to public inspection, as well as portions of the employee's [resume] reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment. . . ." 97-ORD-66, p. 5; 03-ORD-012; 11-ORD-210. These decisions are premised on the idea "that a person does not typically work, or attend school, in secret, and therefore the employee's privacy interest in such information is outweighed by the public's right to know that the employee is qualified for public employment. " 9 93-ORD-32, p. 3; 00-ORD-090. In other words, the "privacy rights of the public employee extend only to matters which are not related to the performance of his [or her] work." OAG 80-43, p. 3. Accordingly, CHFS may require inspection of any existing public records containing the information responsive to item 6 of Mr. Kepley's request after necessary redactions have been made, but is not permitted to deny access entirely. 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 Under KRS 61.878(3), a public agency employee or an applicant for employment is entitled to inspect and copy "any record including preliminary and other supporting documentation that relates to him." See 05-ORD-118; 11-ORD-050. In addition, otherwise preliminary documentation forfeits exempt status upon being adopted, in whole or in part, as the basis for the final action of the agency. See 14-ORD-017. Because Mr. Kepley has not specifically challenged the agency's disposition of his request as to item 1 (all recorded information that was "received, transmitted, obtained or documented by the investigator Marjorie B Payne"), this office trusts that CHFS provided him with access to any existing responsive documents, including otherwise preliminary notes or statements upon which Ms. Payne based her finding that his allegation was unsubstantiated.
2 Mr. Kepley did not question the validity of this position and existing authority supports it. See 04-ORD-045, pp. 1-6.
3 This issue was not raised on appeal. Prior decisions, including 00-ORD-90, 04-ORD-003, 07-ORD-093, and 10-ORD-196, affirm the validity of the agency's position.
4 Inasmuch as the agency relied entirely upon decisions of this office which predated Cape Publications v. Louisville, 191 S.W.3d 10 (Ky. App. 2006) in support of this argument, CHFS may wish to review, for example, 11-ORD-190, for the current analysis.
5 A review of the memorandum directed to Mr. Klein by Ms. Payne on July 31, 2014, a copy of which Mr. Kepley was provided with, verified the agency's position that no "policy or procedure" was referenced.
6 See KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records ") (emphasis added).
7 Mr. Kepley acknowledged in his request "there is a reasonable charge per page for preparing and copying this information." On appeal he advised that he lives in Georgetown, Indiana, and works in Louisville, Kentucky, so he believes it would be "unreasonable" to make him drive to Frankfort, Kentucky, to inspect and view documents that could easily be copied and mailed. His point is well-taken; however, KRS 61.872 does not employ a standard of reasonableness.
8 Mr. Kepley has not disputed that appropriate redactions can be made per KRS 61.878(1)(a).
9 Compare 99-ORD-113 (public employees have a "cognizable privacy interest in test scores and examination results when those scores or results are disclosed in conjunction with the employee's name or other personally identifiable information"); 00-ORD-126 ("public's right to know does not extend to such minutia as classes taken and grades received").