Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Hugh L. Tollack II appeals the Department of Revenue's denial of his November 22, 2013 request for copies of "all documentation in the Department's possession and/or contained within the Department's files, pertaining to the Protest of an audit of Rent-A-Center, Inc.'s and/or Rent-A-Center East, Inc.'s tangible personal property tax for tax years 1997 through 2001, inclusive." The Department of Revenue denied this request on December 13, 2013, advising Mr. Tollack that "[a]fter a thorough search, the Department was unable to find any remaining records for the tax years 1997 through 2001." Mr. Tollack objects to "multiple violations" of the Act but focuses primarily on a perceived inconsistency between statements about the existence of responsive records made by Department counsel in proceedings before the Kentucky Board of Tax Appeals and by the Department's open records coordinator in responding to his November 22 request.
Responding to Mr. Tollack's appeal, the Department explained that in attempting to fulfill an earlier Request for Production a Department employee located three documents from the referenced period. Those records were provided to Rent-A-Center through discovery on July 8, 2013. In the course of proceedings before the Kentucky Board of Tax Appeals on November 19, 2013 Department counsel advised the Board Chairman that, in compiling records responsive to the discovery request, the Department "went back and looked at everything that we could find that had anything to do with the '97-2001, or this settlement agreement." Counsel confirmed that the Department "searched those files . . . for those years." Emphasizing that counsel's answer was "intended to comply with his duty of candor to the tribunal - not to couch his answer in a limited definition of what a file folder is," the Department asserted that "[n]o individual file folders were found to exist for the years requested" and that there is no inconsistency between counsel's statement to the Board and the open records coordinator's response to Mr. Tollack's open records request. Because the physical files for 1997 to 2001 were destroyed pursuant to the Department's Records Retention Schedules, Records Series 03921, the only surviving responsive records were the "remnants and drafts held by individual Revenue workers" 1 provided to Rent-A-Center by the Department on July 8 in response to the companies' Request for Production.
Defending its response to Mr. Tollack's open records request, the Department asserted that, "[a]lthough entitled to protest such repeated requests pursuant to KRS 61.872(6), 2 [it] graciously elected to comply with the request," and that its open records coordinator thereafter "began an independent and thorough investigation of Departmental records. " That search yielded no documents other than those "already . . . requested and provided to [Rent-A-Center] through the discovery process. " Because Rent-A-Center "had been provided all possible records requested," the Department maintained, its "denial of the subsequent open records was proper." The record on appeal does not support the Department's position.
KRS 61.880(1) establishes the legal requirements for public agency response to an open records request. It mandates written notification to the requester of the agency's decision whether it will "comply" or "deny" the request within three business days. If the requested records are in active use, in storage, or otherwise unavailable, the agency must "immediately notify" the requester in writing and provide "a detailed explanation of the cause . . . for further delay and the place, time, and earliest date on which the public record will be available." KRS 61.872(5). The record on appeal reflects that on November 25 the Department notified Mr. Tollack by email that "[d]ue to the upcoming holiday and the nature of [his] request," it would "formulate a complete response" by December 13, 2013. Mr. Tollack objected to the proposed date, asserting that the "[t]axpayer needs the documents prior to December 13, 2013 and respectfully requests . . . the Department's [complete] response by December 6, 2013." The Department "update[d]" Mr. Tollack on the status of his request on December 6, advising him that although it was believed that the requested records were "destroyed per the state's official Records Retention Schedule," the Department was "currently exhausting all avenues in an effort to locate any remaining records and/or provide documentation of their destruction." 3 Inquiring "when an official and final response [would] be forthcoming" on December 9, 2013, Mr. Tollack was advised that the Department "hope[d] to be able to tell [him] tomorrow whether [the Department found] the files or a notice that the files [had] been destroyed. " On December 13, the Department notified Mr. Tollack that it was "unable to find any remaining records."
The Department's response satisfied neither KRS 61.880(1) nor KRS 61.872(5). Excluding Saturdays, Sundays, and legal holidays, Mr. Tollack did not receive final notice that his request was denied until approximately twelve business days had elapsed. The Department's explanation for this delay fell short of the "detailed explanation" required by KRS 61.872(5). Whether any delay beyond the statutory deadline was warranted turned on the adequacy of the Department's explanation. "The upcoming holidays" and "the nature of [his] request" did not justify a delay of this duration. The Department's response therefore violated KRS 61.880(1) because it did not constitute a timely written response and KRS 61.872(5) because it did not contain a detailed explanation of the cause for delay beyond the statutory deadline for production of nonexempt records.
The Department's response was also deficient under KRS 61.880(1) because it did not identify a legally recognized basis for denying Mr. Tollack's request. The Department denied the existence of "any remaining records" other than those produced in discovery but offered no explanation for its decision to withhold the latter records. In subsequent correspondence, the Department asserted that because it has "provided all possible records requested" in the discovery process, "denial of Mr. Tollack's open records request was proper." KRS 61.880(1) requires citation to legal authority supporting denial of an open records request. The Department provided no legal authority supporting nondisclosure in its original response thus violating KRS 61.880(1).
The Department's belated rationale for nondisclosure of the records produced in discovery "is not a legally recognized basis for denying an open records request." 99-ORD-121, p. 9. In 99-ORD-121 the agency to which an open records request was directed stated that it properly withheld two records because the requester "already had the items." Id. The Attorney General rejected this argument in 99-ORD-121 and a series of decisions issued to the present. See, e.g., 10-ORD-154. At page 5 of 00-ORD-16, we noted that "it is only through full disclosure," of the agency's records that the requester can satisfy himself "that the record is complete." The agency cannot avoid its duties under the Open Records Act because the requester previously obtained the records by non-open records means, but must release the records to the requester within three business days or cite the statutory basis for denial. 4 10-ORD-154, p. 5; accord, OAG 82-169, p. 2 (recognizing that although there may be litigation in the background, a requester "stands in relationship to the agency under the Open Records Law as any other person"); OAG 89-65, p. 3 (recognizing that "[r]equests under Open Records provisions, to inspect record held by public agencies, are founded upon a statutory basis independent of the rules of discovery [, and p]ublic agencies must respond to requests made under the Open Records provisions in accordance with KRS 61.880"); see also,
Kentucky Lottery Corporation v. Stewart, 41 S.W.3d 860, 864 (Ky. 2001) cited with approval in
Department of Revenue v. Wyrick, 323 S.W.3d 710, 714 (Ky. 2010). Consistent with this line of authority, the Department must disclose to Mr. Tollack the records previously disclosed in discovery that are responsive to his open records request or assert a statutory basis for denial.
The remaining, and perhaps most important, issue in this appeal centers on the adequacy of the Department's search for responsive records. The arguments advanced by the Department in its affidavits support a finding that it conducted a search for responsive records "using methods which [could] reasonably be expected to produce the records requested." 5 The Department contacted "all persons whose office might retain the records sought or, in the alternative, have knowledge of where those records might be located," identifying five employees by name and referencing a sixth unnamed individual by agency affiliation. Mr. Tollack notes that the Department employee who located among his "personal" office files the records produced in discovery was not identified in the affidavit as a "person[s] whose office might retain the records sought." We reject any imputation of impropriety based on this omission. We ascribe it, instead, to the fact that that employee conducted an exhaustive search of his files in the course of discovery and produced all records that search yielded. Nor do we assign the same significance to counsel's statement before the Board of Tax Appeals that the Department searched it "files" for the referenced years in compiling records for discovery. In the absence of evidence that the decision not to ask the same employee to conduct a second search of his files was aimed at concealing public records, proof of which would have to be presented to the courts pursuant to KRS 61.880(5) and 61.991(2)(a), or that the use of the term "files" by agency counsel imported broader meaning, we find that the Department of Revenue conducted an adequate search for records responsive to Hugh L. Tollack II's open records request but violated the Act in discharging its duty to produce those 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. 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 Subsequent correspondence submitted by the Department suggests that these records were located by a single employee and not multiple employees.
2 KRS 61.872(6) authorizes agencies to deny unreasonably burdensome requests or requests that are intended to disrupt the agencies' essential functions.
3 Mr. Tollack points to the Department's failure to produce the destruction certificates for the responsive records as evidence of its equivocation on the issue of the records' existence or nonexistence. While the destruction certificates would provide the strongest possible support for the Department's argument that the records were destroyed, the Open Records Act does not require their production as proof of the nonexistence of the records. If Mr. Tollack wishes to pursue this question, he can submit an open records request to the Department of Revenue, or the Kentucky Department for Libraries and Archives, for copies of the pertinent records destruction certificates.
4 Conversely, the requester should not be heard to complain that he already obtained from another source the records disclosed in response to an open records request.
5 95-ORD-96, p. 5 cited in 12-ORD-195, note 3.