Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Ruben R. Salinas initiated this appeal challenging the denial by the Cabinet for Health and Family Services (CHFS), Department for Public Health (Department) of his June 21, 2015, request for a copy of the "Statewide Education, Awareness, and Information Program on Hepatitis C, inclusive of all protocols, guidelines and materials that specifically address individuals who may be at high risk of infection, including but not limited to . . . prisoners, . . . individuals who received blood transfusions prior to 1992; with production of all reports required to be produced to the Interim Joint Committee on Health and Welfare from December 1, 2006 and every 6 months thereafter requested by the Committee; as prescribed by KRS 214.187 et seq." By letter directed to Mr. Salinas on July 1, 2015, Chief of Staff Allyson Taylor advised that the Department "possesses no documentation pertaining to your above request. Specifically, the [D]epartment does not have a statewide prevention[,] awareness [,] and education plan. The Center for Disease Control is the guidance that we recommend practitioners follow." The Department further advised Mr. Salinas that he should contact the Legislative Research Commission (LRC) for copies of the reports mandated under KRS 214.187 and provided the address for the Interim Director of the LRC in compliance with KRS 61.872(4); the Department noted that "reports for 2014 and the first 6 months of 2015 are still pending review."
In his August 5, 2015, appeal, 1 Mr. Salinas asserted that the "significant issue is that the [CHFS] is ignoring a legislative mandate (KRS 214.187)[.]" 2 Upon receiving notification of his appeal from this office, counsel for the Department advised that it "complied with Mr. Salinas' request to the extent it possessed records, but it did not possess records as you will note in the timely response included in the documentation provided by Mr. Salinas." Counsel noted that per KRS 61.872(4), the Department provided "the contact information for a person at LRC who can help Mr. Salinas find his reports." The Department "does not have anything to add in response to the appeal as it explained everything to Mr. Salinas accurately in its initial response letter to his open records request." Counsel observed that the intent of the Department's appeal response was "to assure both the Attorney General and Mr. Salinas that [CHFS] has made every effort to find any records responsive to Mr. Salinas' request. [CHFS] cannot be held responsible for records that it simply does not possess." Given that Mr. Salinas requested the "Program" required under KRS 214.187, in addition to any reports generated in accordance with KRS 214.187, and the Department simultaneously indicated that it complied "to the extent it possessed records," but "did not possess" any such records, further clarification was needed.
In response to a request by this office for clarification as to whether the guidelines from the CDC have been adopted to satisfy the statutory requirement, and if so, whether the Department provided Mr. Salinas with a copy, the Department advised:
Due to lack of resources, the [Department] has not been able to implement a "program" that can be reduced to paper and printed off. The Department has a person who travels the state doing various projects including educating the medical community on Hepatitis C. The Department's person who travels the state educating on Hepatitis C uses guidance from the CDC to educate and raise awareness. The [CHFS] can print off the guidance from the CDC and send to Mr. Salinas, but as you can tell this is not in direct response to the open records request because it does not represent any "program" specifically, just guidance by the CDC.
This office is not empowered to direct a public agency to create records "or declare its failure to do so a subversion of the intent of the Open Records Act. " 95-ORD-48, p. 2; 12-ORD-162. The Department cannot produce that which it does not have and this office has no basis upon which to find that its failure to comply with Mr. Salinas' request violated the Open Records Act . Mr. Salinas' broader issues are not justiciable in this forum as 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; 14-ORD-023.
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. Although the intent of the Open Records Act has been statutorily linked to KRS Chapter 171, pertaining to management of public records, 3 and the Attorney General has applied a higher 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). Decisions of the Attorney General resolving disputes arising under the Open Records Act are thus generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record (s), and, if so, whether the record(s) is open to public inspection. 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; 12-ORD-162. 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.
The Department initially failed to provide any explanation for the nonexistence of documents responsive to Mr. Salinas' request for the statutorily required "Program," beyond asserting that guidance from the CDC is followed. See 11-ORD-111 (agency violated the Act in failing to provide any explanation for the nonexistence of documents presumed to exist per governing statutes which expressly mandated creation of at least minimal responsive documents). However, the Department ultimately clarified on appeal that no "Program" has been created in a written format which can be reproduced for inspection or copying. The Department now finds itself in in the position of having to "prove a negative" in order to conclusively refute Mr. Salinas' claim that such a record not only should exist, but does. 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 a public agency might 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). Addressing this dilemma, 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." 4 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 public records in the absence of a prima facie showing that such records did, in fact, exist in the possession of the agency. See, e.g., 07-ORD-188; 08-ORD-189; 11-ORD-209; 12-ORD-012. However, this office has also 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. See
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.
The Department has not denied that KRS 214.187 applies here or disputed that a written version of the "Program" is required under that statute. However, "the proper interpretation of KRS [214.187] or a determination of what exactly is required to achieve full compliance therewith is beyond our purview." 12-ORD-162, p. 5; 12-ORD-110 ("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")(footnotes omitted). The current dispute fundamentally amounts to "a 'records creation,' as opposed to a 'records access,' issue." 99-ORD-140, p. 5. As the Attorney General has long recognized:
It is abundantly clear that the shared intent contemplated by the legislature in enacting KRS 61.8715 is confined to records management and maintenance. There is no reference in [KRS 61.8715, or anywhere else in the Open Records Act] to records creation. We decline the invitation to invade the prerogative of public agencies in determining, "in accordance with standards, rules and regulations prescribed by the Department for Libraries and Archives," what records they must create. KRS 171.640. We therefore affirm those principles articulated in OAG 78-231 and subsequent opinions relative to records creation, and conclude that, KRS 61.8715 notwithstanding, the Attorney General is not empowered to order an agency to create records, or to declare its failure to do so a subversion of the intent of the Open Records Act.
95-ORD-48, p. 2; see 97-ORD-31. Nor is the Attorney General empowered to declare that a public agency's "failure to create a record constitutes a violation [or subversion of the intent] of the Open Records Act. " 99-ORD-140, pp. 5-6. Accordingly, this office has no basis upon which to find that the Department violated the Open Records Act in denying Mr. Salinas' request for a hard copy of a nonexistent "Program."
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 Mr. Salinas initially attempted to submit his appeal by letter dated July 20, 2015, but failed to include a copy of his original written request as required to pursue an Open Records Appeal per KRS 61.880(2)(a); accordingly, this office notified Mr. Salinas by letter dated July 30, 2015, of this omission and returned the other documentation to him for use in the event he wished to perfect his appeal. Mr. Salinas did so by letter dated August 5, 2015.
2 Pursuant to KRS 214.187(1):
The Department for Public Health shall develop a statewide education, awareness, and information program on hepatitis C. The hepatitis C education, awareness, and information program may be incorporated into other existing health education programs. The Department for Public Health may make available on its Internet Web site protocols, guidelines, and materials for hepatitis C education, awareness, and information programs that increase the understanding of the disease among general and high-risk populations.
In relevant part, subsection(2) provides that said program "may include material to specifically address individuals who may be at high risk of infection, including but not limited to law enforcement officials, corrections personnel, prisoners, veterans, individuals who received blood transfusions prior to 1992, hemophiliacs, students, and minority communities." The program may utilize "education materials developed by health-related companies and community-based or national advocacy organizations." Subsection (5) provides that the Department "shall report on the hepatitis C education, awareness, and information program to the Interim Joint Committee on Health and Welfare by December 1, 2006, and every six (6) months thereafter, or upon request of the committee."
3 See KRS 61.8715.
4 Black's Law Dictionary , 1071 (5th ed. 1979), defines prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."