Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
Attorney Brenda D. Allen initiated this appeal on behalf of her client, Sandra Carlton, challenging the actions of the Kentucky Department of Revenue ("Department") in relation to Ms. Carlton's September 23, 2014 request for "access to and an electronic/ or printed version copy of" all records "accessed within the last five (5) years, if available," of "employee log-in and employee name(s) associated with any log-in, in any electronic information database for KY Department of Revenue Cabinet [sic] with respect to searchable databases and record of which my name(s), Sandra Hall Carlton or Sandra Hall Carlton-McCoy and/or [social security number omitted] has been researched or accessed. " By letter dated October 16, 2014, Open Records Coordinator Stacy Bush advised Ms. Carlton that she was enclosing "a spreadsheet with log-on information from our older individual income tax system[.] This is the only information that we were able to retrieve."
Based upon the limited number of records provided, "and the fact that the most recent access to her records was more than three years ago," Ms. Allen was concerned that all existing responsive documents were not released. Accordingly, she asked Ms. Bush in a letter dated November 9, 2014, if she could provide any further information and requested that she advise if the records were unavailable. Ms. Allen also resubmitted Ms. Carlton's request, asking for "[a]ll records of employee login/logout to any database for the records of Sandra Hall Carlton or Sandra Hall Carlton-McCoy from January 1, 2009 to present" and "[a]ny record identifying the employee assigned/associated with the login credential for records accessed" under those names for the designated time period. By letter directed to Deputy Commissioner Elyse Weigel on November 16, 2014, Ms. Allen advised that Ms. Bush's initial response was "several weeks late" and that she had also not received a response to her November 9, 2014 request as of that date. Having received no further correspondence from the Department, Ms. Allen initiated this appeal, on behalf of her client, by letter dated December 30, 2014.
Upon receiving notification of Mr. Allen's appeal from this office, Katherine J. Fitzpatrick responded on behalf of the Department. Ms. Fitzpatrick initially acknowledged that, having reviewed Ms. Allen's letter of appeal, including attachments, it was "clear that the Department did not respond in a timely manner to Ms. Carlton's initial request. The Department regrets that it was unable to recover this information in a manner consistent with KRS 61.872(5)." Ms. Fitzpatrick advised that Ms. Carlton's September 23, 2014 request was received on September 29. On that same day, Ms. Bush contacted the Commonwealth Office of Technology ("COT") and requested that COT provide all responsive information. Ms. Fitzpatrick further explained that Ms. Bush recalled that she received "some limited documents from COT on October 2, 2014," "and immediately drafted a letter to Ms. Carlton with the intent to forward her the information that day." However, Ms. Bush neglected to post the letter until October 16, 2014, when she realized that it had not been sent.
Ms. Fitzpatrick advised that Ms. Bush was also concerned regarding the limited information that COT provided; accordingly, she e-mailed COT requesting an explanation as to why so little information was located. By e-mail dated October 17, 2014, a copy of which Ms. Fitzpatrick attached to her appeal response, COT employee Ashiq Zaman explained:
The other log-on information is not captured by the legacy systems which are very old and were not designed for that. And our IIS (web server) Logs and server logs are not configured to capture all tracking information and those log files on our current systems get purged on a periodic basis. Because of that we could not find any more information than what we researched and submitted last time.
Ms. Bush deemed Mr. Zaman's technical explanation satisfactory and thus believed that Ms. Carlton's request was resolved; however, she apparently failed to relay this explanation to Ms. Carlton. Ms. Bush maintained that she received no further telephone calls, faxes, e-mails, or letters from either Ms. Carlton or Ms. Allen regarding this issue.
Upon review, Ms. Fitzpatrick noted that Ms. Allen's follow-up letter, addressed to Ms. Weigel, was faxed to a number that corresponds to the Sales and Use Tax Department, located several floors away from her office. 1 Ms. Weigel confirmed to Ms. Fitzpatrick that she did, at some later time, receive Ms. Allen's letter. Upon receipt, Ms. Weigel contacted Ms. Bush to inquire as to whether the request had been addressed. Because she had not received Ms.Allen's letter, Ms. Bush assumed that Ms. Weigel's inquiry pertained to Ms. Carlton's initial request, which had been satisfied. Ms. Weigel assumed the matter was resolved per the conversation that she had with Ms. Bush. The Department apologized for this miscommunication. Nothing in the record on appeal suggests bad faith on the part of the agency. Ms. Fitzpatrick advised that, in November 2014, the Department "established an investigative committee to study employee responsiveness to Open Records Act requests and to make proactive recommendations to improve efficiency and communications related thereto. [The Department] is in the process of curing any deficiencies and has provided the Appellant with all responsive information within our possession."
The Department's response satisfied neither KRS 61.880(1) nor KRS 61.872(5). See 14-ORD-226. A public agency such as the Department must comply with substantive and procedural requirements of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays? 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." (Emphasis added.) Public agencies cannot generally postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d, 1035, 1041 (9th Cir. 1999); 01-ORD-140. As the Attorney General has frequently noted, this is a "fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1)." Id., p. 3. When 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); 04-ORD-208. Thus, in failing to issue a written response to Ms. Carlton's September 23, 2014 request within three business days of receipt and provide any existing responsive documents, or cite a statutory basis for denying access, the Department failed to provide her with "timely access" contrary to KRS 61.880(1). See 10-ORD-201; 12-ORD-105.
The Department did not, in the alternative, expressly invoke KRS 61.872(5) 2 or provide a detailed explanation of the cause for delay in producing any existing responsive documents and the specific date on which the records would be made available. Nor was any explanation of the cause for delay later provided in the agency's October 16, 2014 response. Assuming the records being sought were "in active use, in storage or not otherwise available," the Department did not specify which of these permissible reasons for delay applied, if any. See 14-ORD-026. Because the relevant statutory language is unambiguous, the governing law is well-established, and the Department has taken positive steps to better educate agency staff and ensure that future procedural violations are not committed, this office will not belabor the point any further.
The Department initially failed to satisfy its burden of proof under KRS 61.880(2)(c) 3 by explaining the reason that only limited information was available, but ultimately cured this omission. Because the Department cannot produce nonexistent records for inspection or copying, and has now provided a credible explanation for the seeming discrepancy, this office has no basis upon which to find that a substantive violation of the Act was committed. See 13-ORD-024. The Department cannot provide Ms. Carlton/Ms. Allen with records it does not have nor is the Attorney General empowered to resolve a dispute concerning a disparity between the records being sought and those provided. OAG 89-81; 12-ORD-087.
The right to inspect records only attaches 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 no such records exist, following a reasonable search, as the Department ultimately did here. On many occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 99-ORD-98; 09-ORD-029; 11-ORD-069. Under the circumstances presented, 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. Rather, KRS 61.880(2)(a) narrowly defines our scope of review.
That said, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the record(s) when the General Assembly enacted KRS 61.8715 in 1994, pursuant to which "public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740]." In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), public agencies must offer some explanation for the nonexistence of the records at a minimum. See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame). For example, the agency "must identify steps taken to locate missing records or explain under what authority the records were destroyed." 08-ORD-015, p. 4. See Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011)(declaring that when a public agency cannot produce records that are presumed to exist, "the person requesting the records is entitled to a written explanation for their nonexistence" ). The Department ultimately explained, in writing, the steps taken to locate potentially responsive documents and the reason why no additional responsive documents currently exist. Ms. Allen has not offered any objective proof that conclusively refutes the position of the Department. When, as in this case, a public agency denies that certain records exist, and the record on appeal does not refute that contention, further inquiry is unwarranted. 05-ORD-065, pp. 8-9; 00-ORD-83; 02-ORD-118
Because Ms. Allen "has produced no affirmative evidence, beyond mere assertions, that the agency possesses such records as [she] has requested, we do not have a sufficient basis on which to dispute the agency's representation that no [additional] records exist." 09-ORD-214, pp. 3-4. See 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring [the agency] to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); see also 11-ORD-118. Compare 11-ORD-074 (recognizing that the "existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable"); 11-ORD-036. The Department's ultimate disposition of the requests in dispute is affirmed.
Either party may appeal this decision may appeal 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 In Baker v. Jones, 199 S.W.3d 749 (Ky. App. 2006), the Kentucky Court of Appeals addressed the claim that failure to personally serve the public agency's custodian of records with a copy of a request made under the Act relieved the custodian of her duties. The Court observed:
The fact that [the custodian] personally never saw the request is irrelevant. To hold otherwise would be tantamount to encouraging our government officers to "bury their heads in the sand" to public matters with which they are charged.
Baker at 752; 07-ORD-241 (recognizing that, even in cases where a request is not served on the agency's custodian of records, "[p]ublic agency inaction is not a viable option"); 09-ORD-058. Ms. Allen initially directed her written request to Ms. Bush and only contacted Ms. Weigel after she did not receive a written response of any kind. The Department was not required to comply with a duplicative request; however, the agency's failure to communicate why no additional records were located is the reason that Ms. Allen directed her second letter to Ms. Weigel instead of the records custodian.
In Baker v. Jones, 199 S.W.3d 749 (Ky. App. 2006), the Kentucky Court of Appeals addressed the claim that failure to personally serve the public agency's custodian of records with a copy of a request made under the Act relieved the custodian of her duties. The Court observed:
The fact that [the custodian] personally never saw the request is irrelevant. To hold otherwise would be tantamount to encouraging our government officers to "bury their heads in the sand" to public matters with which they are charged.
Baker at 752; 07-ORD-241 (recognizing that, even in cases where a request is not served on the agency's custodian of records, "[p]ublic agency inaction is not a viable option"); 09-ORD-058. Ms. Allen initially directed her written request to Ms. Bush and only contacted Ms. Weigel after she did not receive a written response of any kind. The Department was not required to comply with a duplicative request; however, the agency's failure to communicate why no additional records were located is the reason that Ms. Allen directed her second letter to Ms. Weigel instead of the records custodian.
2 KRS 61.872(5) states:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
KRS 61.872(5) states:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
3 In relevant part, KRS 61.880(2)(c) provides that "[t]he burden of proof in sustaining the action shall rest with the agency[.]"
In relevant part, KRS 61.880(2)(c) provides that "[t]he burden of proof in sustaining the action shall rest with the agency[.]"