Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. HarrisonAssistant Attorney General
Open Records Decision
Ruben R. Salinas initiated this appeal challenging the denial by the University of Kentucky (UK) of his September 16, 2015, request for "Bulletins, Records, Warnings, or Alerts to the staff, patients, workers, clients or visitors about infection or potential infections of bloodborne pathogens such as Hepatitis-C or Non-Hepatitis A or B; from the CDC, FDA or any internal or external groups or source, occurring between 1990 thru 2005." UK received Mr. Salinas' request on September 22, 2015, and issued a timely written response by letter dated September 24, 2015, advising that "the University's Department of Internal Medicine/Infectious Diseases, Infectious Disease Clinic, Department of Quality and Safety and the Department of Health Services have all advised that there are no documents responsive to your request." 1 On appeal Mr. Salinas noted that, in denying his current request, unlike with its denial of his request to the UK College of Dentistry (the subject of 15-ORD-149), "where they did not initially deny possession of the sought after records," here UK "makes the unlikely claim that no such 'documents' exist."
Upon receiving notification of Mr. Salinas' appeal, UK asserted:
The relevant facts are not in dispute. In a previous request, Mr. Salinas requested "records; bulletins; etc., that warned, or alerted, the staff, or patient/ clients, of infection or potential infection (s) of bloodborne pathogens such as Hepatitis B or C, HIV, from 1990 through 2004 occurring in this department" from the College of Dentistry. The University provided those records.
Now, in a follow-up request, Mr. Salinas seeks the records meeting the same description but from "any" [sic] "any internal or external group or source." The University interprets this follow-up request as a request to search for records outside the College of Dentistry. The University did this search and its search revealed no records.
Ultimately, UK maintained, the current dispute centers on the proper interpretation of Mr. Salinas' request. Quoting Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008) ("KRS 61.872(2) only requires that one seeking to inspect public records may submit a written application 'describing the records to be inspected,'" the written request must still be "adequate for a reasonable person to ascertain the nature and scope of [the] open records request."), UK argued that public agencies "are not required to speculate as to what the requester wants. Nor are agencies required to assume the breadth of a request." UK reiterated the assertion that it "has produced all records that are responsive to the University's good faith interpretation of Mr. Salinas' request. Mr. Salinas did not ask for all records in the University's possession related to blood borne pathogens. " Rather, Mr. Salinas' request is limited to "records related to infections or potential infections 'occurring in this department between 1990 and 2004.' Moreover, since Mr. Salinas explicitly limited his request to records 'that warned or alerted others,' the University necessarily had to make a subjective determination as to whether a particular record met this criteria." While reasonable people may disagree as to whether a specific record "warned or alerted others," UK argued, "the University's determination was made in good faith." In the absence of a more precise request by Mr. Salinas, UK maintained that it should not be "forced to speculate" as to what he seeks. In light of the guidance provided in 15-ORD-149 regarding documents that would presumably exist and fall within the parameters of Mr. Salinas' request as framed, which UK should have used to assist in attempting to identify and locate any responsive documents and then determine whether those documents were indeed responsive, this office must respectfully disagree that UK has fully discharged its duty under the Act.
This office is first compelled to clarify that contrary to UK's appeal response, Mr. Salinas' current request is not limited to a particular "department," i.e . the College of Dentistry, as compared to his otherwise largely similar June 5, 2015, request which culminated in 15-ORD-149. His current request is also expanded to include records "from the CDC, FDA or any internal or external groups or source" during the relevant period of time, as UK correctly noted in that response. Further, this office concluded in 15-ORD-149 that UK had not fulfilled its duty under KRS 61.880(1) "and should undertake a broader search for 'records [and] bulletins, etc. that warned or alerted the staff, or patients/ clients, of infection or potential infection (s) of bloodborne pathogens such as Hepatitis B or C [and] HIV from 1990 thru 2004.'" Of particular significance, this office reasoned as follows in 15-ORD-149:
Contrary to the University's position, it did not fulfill its statutory obligation when Ms. Wilson responded to the request by producing "two forms that were given to patients in 1996 providing consent and notifying patients that they were giving the department authorizing [sic] to treat for additional procedures such as HIV testing." 2 Mr. Salinas' request extended well beyond standard consent and release forms to "records [and] bulletins, etc., that warned or alerted, the staff, or patients/ clients, of infection or potential infection of blood borne pathogens such as Hepatitis B or C [and or] HIV, from 1990 thru 2004 occurring in this department." It expressly includes "records [and] bulletins, etc.," that alerted staff and patients of the risk of Hepatitis B or C or HIV infection from bloodborne pathogens. The forms provided by the University in response to the request do not contemplate the actual request, which is for much broader categories of documents, documents that we presume in the management of a hospital would exist.
15-ORD-149, p. 3 (emphasis added).
At footnote 4 on page 4 of that ORD, this office provided specific examples of records that would reasonably be deemed responsive to Mr. Salinas' request as framed to assist UK in conducting an adequate search. 3 The list was illustrative rather than exhaustive. Because UK did not appeal that Open Records Decision to circuit court, pursuant to KRS 61.880(5)(b) it now has the "force and effect of law." 4 Accordingly, by producing two forms that were already deemed to "not contemplate the actual request," i.e. , be nonresponsive, UK cannot be said to have fulfilled Mr. Salinas' current request, given that his current request largely mirrors the previous request in relevant part ("Bulletins, Records, Warnings, or Alerts to the staff, patients, workers, clients or visitors about infection or potential infections of bloodborne pathogens such as Hepatitis-C or Non-Hepatitis A or B"), and is not limited to records in the College of Dentistry, meaning a broader search was required.
UK is correct in asserting that a public agency is not required to speculate in order to comply with a request made under the Open Records Act; however, in light of the recent decision of this office listing potentially responsive documents that UK was presumed to possess in accordance with existing legal authority, UK was not required to "speculate" and its narrow interpretation of the current request was therefore not reasonable. See 13-ORD-029 (a reasonable person would have deemed the letter in dispute at least potentially responsive and the agency's belated argument regarding the semantics of the request was unpersuasive on the facts presented). Mr. Salinas' request was "adequate for a reasonable person to ascertain its nature and scope . . . ." and was therefore sufficiently descriptive under Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008). "He was required to do nothing more and, indeed, likely could not have done anything more because he could not reasonably be expected to request blindly, yet with particularity, documents . . . that he had never seen. [Footnote omitted.]" Id.
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. In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), however, public agencies must offer some explanation for the nonexistence of the requested records at a minimum. See 01-ORD-38; 04-ORD-075; 12-ORD-231. Past decisions of this office have recognized 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." 5 11-ORD-074, p. 2; 12-ORD-195. The agency can overcome this presumption by explaining why the record does not exist. Id. In Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011), the Kentucky Court of Appeals approved this position, 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. " See 12-ORD-195. Where, as in this appeal, "the existence of the records in dispute is postulated on existing legal authority or facts in evidence rather than speculation," this office found that a public agency's response "was deficient, inasmuch as it offered no explanation for the nonexistence of the record(s) in dispute notwithstanding legal authority mandating creation of such a record(s)[.]" 11-ORD-111, pp. 3-4; 11-ORD-074, pp. 3-5; compare 12-ORD-209. Because the agencies' responses were, at best, "limited and perfunctory," 6 under the circumstances presented in each of those cases the Attorney General found those responses both substantively, as well as procedurally, deficient. 11-ORD-111, p. 5, quoting 11-ORD-074. This office reaches the same conclusion here.
As in 11-ORD-111, the public agency in this case has not asserted that any or all records which may be responsive to Mr. Salinas' request, including those presumed to exist under existing legal authority cited above, for example, "are in the custody of a different public agency or were destroyed in the normal course of business in accordance with applicable records retention schedules, even assuming that applicable schedules would permit as much, or even asserted that such records were created and then lost." Instead, UK maintained that no such records existed initially, without identifying the steps taken to identify and locate any such documents, and subsequently relied on the purportedly imprecise language used in the request as the bases for denial. 11-ORD-111, pp. 6-7; see 12-ORD-192 (omission by the agency of explanation for nonexistence of appraisal statutorily presumed to exist constituted a substantive violation of the Act). "Under the rule announced in Eplion , [UK] must provide Mr. [Salinas] with a written explanation for the nonexistence of records responsive to his [current] request [after conducting a reasonable search per 95-ORD-96 if the agency has not already done so ]. Until it has done so, its duties under the Open Records Act will not be fully discharged. " 12-ORD-195, p. 5; 15-ORD-016.
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.
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