Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Department of Agriculture violated the Open Records Act in the disposition of Kevin Wheatley's July 15, 2015, request for documents relating to an employee. For the reasons that follow, we cannot conclusively find a violation of the Act, but refer the matter to the Department for Libraries and Archives.
Mr. Wheatley's request, submitted by e-mail to Department of Agriculture General Counsel Nicole Liberto, asked for copies of:
Any documents in the department's possession reflecting work assignments either planned for or completed by KDA employee John Pitcock from Jan. 1, 2013, through Jan. 1, 2015. Please note that these records should NOT include inspection reports, but rather any work logs created by either the KDA or Mr. Pitcock on a regular basis (i.e. daily, weekly, monthly, etc.).
(Emphasis in original.) On July 22, 2015, Ms. Liberto indicated to Mr. Wheatley that a response would be forthcoming. 1 On July 26, 2015, she responded:
The timesheets you have requested will be forwarded to you tomorrow (7/27/2015).
Regarding the work logs, I have been informed of the following:
"The KDA does not have any additional documents beyond what we have already provided [ i.e. , timesheets] . At the requested time, Mr. Pitcock directly reported to Jon Jeffries. Mr. Jeffries passed away unexpectedly in March. [KDA employee] David Wayne obtained his laptop from the family shortly after, however, there was no information stored on his laptop. Jon Jeffries' (deceased) direct supervisor was [KDA employee] Wendy Davis who left KDA at the end of February. Therefore, David Wayne researched all of the documents/supervisor files Mrs. Davis kept on file which unfortunately were not saved on her computer either. Lastly, during the month of May, several of the folks in that shop (Ag pesticide) attended training at Rough River State Park. While attending the training, Mr. Pitcock's vehicle was broken into resulting in his laptop being stolen which is supported by a police report being filed at that time. In conclusion, KDA does not have any additional documents to provide." -Ginger Wills, Executive Director, Strategic Planning & Administration
On September 21, 2015, Mr. Wheatley initiated an appeal, adding the following information:
Based on an interview with Ms. [Wendy] Davis, it is this reporter's belief that information has been withheld and/or destroyed by the KDA pertaining to this request. During the interview, Ms. Davis indicated that not only did she have such information stored on her work computer, but also left hard copies of all pesticide inspectors' daily work schedules in her office after her departure from the agency effective Feb. 1, 2015. Not only that, but Ms. Davis indicated that additional hard copies were retained in a binder by the late Mr. Jeffries, and another binder was provided to Mr. Benson Bell, executive director of the department's Office for Consumer and Environmental Protections. Ms. Wills' statement makes no mention of hard copies of the records requested.
Additionally, this reporter sought any records destruction certificates filed by the KDA with the Kentucky Department for Libraries and Archives from Sept. 1, 2014, through September 2015, a request that yielded no such documentation for the destruction of Mr. Pitcock's work itinerary as a pesticide inspector.
In a response to the appeal dated October 7, 2015, Ms. Liberto stated:
The KDA's response remains unchanged; ". . . KDA Ag branch manager David Wayne researched all of the documents/supervisor files Mrs. Davis kept on file which unfortunately were not saved on her computer. . . [Therefore] in conclusion, KDA does not thave any additional documents to provide." -Ginger Wills, Executive Director, Strategic Planning & Administration
The Kentucky Department of Agriculture respectfully submits that it provided all of the documents in its possession that were responsive to the request. . . .
This response did not address Mr. Wheatley's allegations of the existence of hard copies of the records he requested. In response to a subsequent inquiry, Ms. Liberto stated on February 3, 2016:
I have been informed by Harland Hatter, Deputy Executive Director, Office of Consumer and Environmental Protection, that hard copies of work logs have not been required of KDA pesticide inspectors since the middle to late 2012. Therefore, although search was made for hard copies of work logs for John Pitcock from January 1, 2013 through July 15, 2015 and Travis Burton from November 24, 2014 through July 15, 2015, no such records were found to exist.
(Emphasis added.) This response does not reflect whether any responsive records were in fact created and subsequently destroyed or otherwise removed from the Department's possession. It does not expressly deny the allegation that the hard copies described by Mr. Wheatley did at one time exist.
If the Department has, for whatever reason, placed some of its records in the hands of a third party, that does not put the records outside the reach of the Open Records Act. 04-ORD-123. "In the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record." Id. (quoting unpublished disposition in City of Louisville v. Brian Cullinan , Nos. 1998-CA-001237-MR and 1998-CA-001305-MR (Ky. App. 1999)). A third party authorized to possess a public agency's records "holds [them] at the instance of and as custodian on the [agency's] behalf, and . . . the [agency's] position that it has no control over these records is without merit." 04-ORD-123. If records are in active use, in storage, or otherwise unavailable, a public agency may take more than the standard three business days to produce them, if necessary, provided "a detailed explanation of the cause is given for further delay." KRS 61.872(5). But the agency may not simply refuse inspection on that basis.
On the other hand, if the Department has destroyed, deleted, or simply misplaced responsive records, this would not substantively violate the Open Records Act per se , because a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Procedurally, however, it is "incumbent on the [agency] to so state in clear and direct terms," 01-ORD-38, and "a written response that does not clearly so state is deficient." 12-ORD-162 (emphasis omitted) (quoting 02-ORD-144). In general, it is not our duty to investigate in order to locate documents which the public agency states that it does not possess. In this case, however, the records may have been lost or improperly destroyed by the public agency, which would create a records management issue.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. The possible loss or improper destruction of public records raises issues which may be appropriate for review under Chapter 171 of the Kentucky Revised Statutes. An agency's "inefficiency in its own internal record keeping system" should not be allowed "to thwart an otherwise proper open records request." Com. v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008). Accordingly, we refer this matter to the Department for Libraries and Archives for additional inquiry as that agency deems warranted.
In conclusion, we have insufficient information to determine why the Department is apparently not in possession of the records described by Mr. Wheatley. If the Department has placed records in the custody of a third party, denial of inspection on that basis would violate the Open Records Act. If, however, the Department has lost or destroyed records, it has frustrated the purpose of the Open Records Act by engaging in improper records management. We are therefore referring the matter to the Department for Libraries and Archives to conduct such inquiries and take such action as it may find appropriate.
A party aggrieved by this decision may appeal it 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 proceedings.
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