Opinion
Opinion By: Jack ConwayAttorney General;Amye L. BensenhaverAssistant Attorney General
Open Records Decision
Background
Laura Hatfield appeals the Cabinet for Health and Family Services' handling of her September 25, and October 3, 2014, requests for records. On September 25, Ms. Hatfield requested previously undisclosed timesheets from a named Cabinet employee's personnel file. The Cabinet did not treat Ms. Hatfield's September 25 request as an open records request and did not respond.
On October 3, Ms. Hatfield requested records relating to a brief filed by the Cabinet in Civil Action Nos. 13-CI-00129 and 13-CI-180 in the Estill Circuit Court. That request was divided into fifteen subparts that included requests for:
1) All records the Cabinet possesses showing that doctors have stated that Hatfield is "delusional, " "paranoid," "fantastical [and] delusional" ;
6) Proof 1 that Laura Hatfield ever called in anonymously pretending to be a physician or attorney;
10) Proof that [a named individual] has no criminal record, as asserted . . . ;
12) Any policy of the Cabinet regarding making public statements about an individual's (alleged) mental health impairments . . . ;
13) Any [written] statements by federal and state law enforcement that Hatfield is mentally ill and that because of this there has never been any investigation into perjury by [a named Cabinet employee.]
Although it does not verify its claim with proof, such as a date stamped copy or an incoming mail log entry, the Cabinet maintains that it did not receive the October 3 request until October 10. The Cabinet responded on October 13 as follows:
Upon review by the Cabinet the file(s) you requested do not exist. The Cabinet does not maintain such records. In any event, the records requests above reference a court pleading filed by the Cabinet. Any information obtained in creating the court pleading would be privileged under the attorney work product doctrine. Any information that could be obtained in the court proceeding can and should be sought by way of the discovery processes described in the Kentucky Rules of Civil Procedure, CR 26.
2
Ms. Hatfield subsequently appealed the Cabinet's handling of her September 25 and October 3 requests.
In supplemental correspondence submitted to this office pursuant to 40 KAR 1:030 Section 2, the Cabinet responded to Ms. Hatfield's September 25 request for previously undisclosed timesheets, stating, in part:
If Ms. Hatfield has timesheets that the Cabinet does not have then she already has them and the problem is solved. The Cabinet provided all the timesheets it could locate.
The Cabinet did not dispute Ms. Hatfield's claim that it did not respond to this request as required by KRS 61.880(1).
The Cabinet characterized Ms. Hatfield's October 3 request as a request for "records used by Cabinet's counsel to draft a pleading in 13-CI-00129, Estill County Circuit Court," disputing her claim that it did not issue a timely written response to that request. The Cabinet reaffirmed that it maintains no "records used by the Cabinet's counsel to draft a pleading in 13-CI-00129, Estill County Circuit Court that are responsive to Ms. Hatfield's October 3 request."
Having reviewed the record on appeal, we find:
1)the Cabinet failed to respond in writing, and within three business days, to Ms. Hatfield's first request, and therefore violated KRS 61.880(1);
2)although the Cabinet could not produce for inspection records that do not exist, its inability to produce timesheets creates a presumption of records mismanagement that the Cabinet fails to rebut, warranting referral to KDLA per KRS 61.8715; and
3) in responding to the Attorney General's KRS 61.880(2)(c) request that it "describe the search method used" in locating records responsive to Ms. Hatfield's October 3 request, the Cabinet described the search method employed in conducting a search for records responsive to Ms. Hatfield's earlier requests, but not her October 3 request, and thus failed to document an adequate search for those records.
Analysis
KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Ms. Hatfield submitted two open records requests to the Cabinet, the first on September 25 and the second on October 3. The Cabinet did not treat Ms. Hatfield's September 25 request as an open records request and did not respond to it in writing. Although the Cabinet presents no proof of receipt of the October 3 request on October 10, the Cabinet responded to that request in writing on October 13. The Cabinet's primary argument in support of denial of the October 3 request was the nonexistence of responsive records. Citing Bowling v. Lexington-Fayette Urban County Government , above, for the proposition that the Cabinet "cannot furnish records that do not exist," the Cabinet indicated that it had previously "provided all the timesheets it could locate. "
The Cabinet violated KRS 61.880(1) by failing to respond to Ms. Hatfield's September 25 request in writing and within three business days. The request "describe[ed] the records to be inspected," and was "signed by the applicant with [her] name printed legibly on the application." KRS 61.872(2). Ms. Hatfield was not obligated to identify her records request as one submitted under authority of the Open Records Act. 12-ORD-114 (recognizing that the failure to issue a timely written response to an open records request was not excused by the requester's failure to identify the request as a request made under the Open Records Act and citing an unpublished opinion of the Kentucky Court of Appeals affirming this position). 3 Because the record neither confirms nor refutes the Cabinet's claim that the October 13 response was timely, based on the unverified date of receipt of the request, we do not conclusively resolve the issue of the timeliness of that response.
With reference to Ms. Hatfield's September 25 request for previously undisclosed timesheets, the Cabinet affirms that it "provided all the timesheets it could locate. " The Cabinet does not deny the existence of the timesheets but instead asserts that they cannot be located. In a line of open records decisions dating back to 1994, this office has recognized that the loss or premature destruction of a public record whose existence is not in dispute "creates a presumption of records mismanagement, but this presumption is rebuttable." 94-ORD-141, p. 5. The presumption of records mismanagement can be overcome by a plausible explanation for the nonexistence of the records. The Cabinet offered no explanation for its inability to produce timesheets the existence of which it does not dispute.
The Bowling case, upon which the Cabinet relies is therefore inapposite. Ms. Hatfield's request for a named employee's timesheets does not create the "unfettered possibility of fishing expeditions for hoped-for but nonexistent records." Bowling at 341. Those timesheets are or were maintained by the Cabinet and should still be maintained by the Cabinet if they are no more than three years old. General Schedule for State Agencies, Records Series P0011 (directing that "Time and Attendance Report[s]" be "retaine[ed] in agency for three (3) years. Destroy[ed] after audit"). The Cabinet's unexplained inability to produce the previously undisclosed timesheets raises records management issues that are referred to the Kentucky Department for Libraries and Archives. KRS 61.8715; see also,
Eplion v. Burchett, 354 S.W.3d 598 (Ky. App. 2011) (recognizing that "when it is determined that an agency's records do not exist, the person requesting those records is 'entitled to a written explanation for their nonexistence' "). The fact that Ms. Hatfield may "already have [the timesheets] " does not mitigate this problem. See 00-ORD-16, p. 5 citing 99-ORD-121, p. 10 (recognizing that the fact that the requester already had copies of the records he requested under the Open Records Act did not constitute "a legally recognized basis for denying an open records request"). The Cabinet cannot avoid its duty to properly manage, retain, and make accessible its public records by arguing that the records already reside in the requester's custody.
In its supplemental response, the Cabinet also reaffirmed the nonexistence of "records used by Cabinet's counsel to draft a pleading in 13-CI-00129, Estill County Circuit Court." 4 On November 24, this office submitted a KRS 61.880(2)(c) 5 request to the Cabinet asking that it "substantiate its statement that no records responsive to Ms. Hatfield's October 3 request exist and describe the search method used by the Cabinet in attempting to locate responsive records." In its response, the Cabinet described past efforts to locate records responsive to Ms. Hatfield's earlier requests as follows:
The search for all records in the aforementioned cases, in the continuing litigation, and the repeated open records requests began with consultation with the Cabinet's client in the matter. Since all of the litigation stems from interactions Ms. Hatfield had with a social worker for the Cabinet, Elouise Bailey, the search began with Ms. Bailey and the case that Ms. Bailey investigated involving Ms. Hatfield. The attorney for the Cabinet searched through records compiled in the course of the investigation, spoke with Bailey's supervisors, and requested records from various courthouses where the aforementioned litigation occurred. Some of the records at the courthouse were under seal, and some records the clerks reported as unable to locate.
The Cabinet did not document the search method employed in attempting to locate records responsive to Ms. Hatfield's October 3 request.
While we are not prepared to say that the Cabinet's search, in general terms, was inadequate, Ms. Hatfield's October 3 request focused on records used by agency counsel in preparing the referenced brief. Our KRS 61.880(2)(c) request for additional information focused on that request, and the Cabinet's response did not describe that search. If it has not already done so, it is incumbent on the Cabinet that it conduct a search for those records "using methods which [could] reasonably be expected to produce" them. 95-ORD-96, p. 7.
The Cabinet cannot produce records that it does not possess or that do not exist. If its additional search yields no responsive records, and it thereafter notifies Ms. Hatfield that there are, in fact, no "records used by Cabinet's counsel to draft" the referenced brief, the Cabinet's duties under the Open Records Act will be fully discharged with respect to her October 3 request. Conversely, if any responsive nonexempt records are located, the Cabinet should immediately make them available to Ms. Hatfield. With respect to Ms. Hatfield's September 25 request for previously undisclosed timesheets that the Cabinet is unable to locate, we refer this matter to the Kentucky Department for Libraries and Archives for additional inquiry as that agency deems warranted.
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 In the first sentence of her request, Ms. Hatfield asks for records. Her use of the term "proof" in successive subparts is interpreted as written "proof," i.e., records.
2 If responsive records existed, and if those records were not exempt, Ms. Hatfield would be entitled to copies under the Open Records Act since application of the Act is not suspended in the presence of litigation. Department of Revenue v. Wyrick, 323 S.W.3d 710, 714 (holding that KRS 61.878(1) "does not allow a court to prevent disclosure of records available to the general public simply because the requesting party is involved in litigation against a public agency"); see also 99-ORD-64 and 11-ORD-002.
3 George William Sykes v. James Kemper, No. 2000-CA-000714 (Ky. App. 2001)
4 The Cabinet examined each subpart of Ms. Hatfield's October 3 request in this supplemental response, noting, for example, with respect to her request for records "showing that doctors have stated that [she] is 'delusional,' 'paranoid,' 'fantastical [and] delusional,'" that the Cabinet possesses no "records that show a doctor has stated any of the aforementioned things about Ms. Hatfield." While we do not doubt the latter statement, we find no less than eight of the Cabinet's own such diagnoses of Ms. Hatfield's mental condition in the referenced brief. These apparently unverified diagnoses no doubt prompted her request.
5 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.