Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Lachin Hatemi initiated this appeal by letter dated July 3, 2016, challenging the denial by the Kentucky Medical Services Foundation ("KMSF") of his June 25, 2016, request for "[a]ll records/agreements/communications between KMSF and" the Council on Postsecondary Education regarding the "Research Challenge Trust Fund (RCTF) aka 'Bucks for Brains' between 2004 and 2015" and "records of pledges/donations made by KMSF to match RCTF funds." In a timely written response, KMSF advised Dr. Hatemi that it did "not believe it would be inappropriate to provide to you if we had any responsive documents. However, we also could not locate documents responsive to your request for records." KMSF further maintained that it was not a "public agency" for purposes of the Open Records Act "or otherwise," a matter that "currently is in litigation[.]" In addition, KMSF advised that it would not provide information "protected by applicable law, information that would not be subjected to the Kentucky Open Records Act if we were a public agency. . . ." KMSF also noted that "it is our policy not to produce information that is more appropriately the subject of discovery in a pending lawsuit in which KMSF is a party. . . ." 1 Consistent with KRS 61.872(4), KMSF advised "that [the University of Kentucky ("UK")] may have documents responsive to your request."
On appeal Dr. Hatemi advised that the RCTF, "commonly referred to as 'Bucks for Brains,' was developed in 1997 with the passage of HB1, the Kentucky Postsecondary Education Improvement Act for strategic investment at [UK], the University of Louisville and Kentucky's six regional universities." According to Dr. Hatemi, during the past decade KMSF "transferred millions of dollars to [UK] to be matched by RCTF." Dr. Hatemi "strongly believe[s] KMSF is intentionally withholding vital documents regarding these transactions." As in 16-ORD-057, 16-ORD-064, 16-ORD-113, and 16-ORD-172, KMSF first argued that until its appeal of 15-ORD-205 (In re: Lachin Hatemi/Kentucky Medical Services Foundation, Inc., rendered November 6, 2015)(holding that KMSF is a "public agency" pursuant to KRS 61.870(1)(j) as it was "established, created, and controlled by a public agency" ) to Fayette Circuit Court has been resolved, its ORA status remains the same as it was prior to 15-ORD-205. See also 16-ORD-033. Here, as before, this office respectfully disagrees and must decline to hold the instant appeal in abeyance pending resolution of the pending lawsuit as requested. "Unless or until an appellate court issues a published opinion that is clearly contrary to our own, we will continue to adhere to the position reflected" in 15-ORD-205. 07-ORD-132, p. 7; 06-ORD-230; 08-ORD-049. The analysis contained in 15-ORD-205 remains controlling as to KMSF's first argument. 2
In the alternative, KMSF argued that Dr. Hatemi's appeal "should be dismissed because it seeks materials that are not within the possession of KMSF." Responding on behalf of KMFS, attorney Harry L. Dadds observed that, as KMSF advised in response to Dr. Hatemi's request, "any potentially responsive documents should be found at [UK]." In support of this position, Mr. Dadds attached the July 19, 2016, affidavit of Carrie A. Cassis, Executive Director of KMSF, attesting that she "conducted a thorough search for documents responsive" to Dr. Hatemi's request "and met with and supervised others at KMSF in search for such responsive documents. The thorough search by myself and others at KMSF yielded no responsive documents." To the best of Ms. Cassis' knowledge, "KMSF does not have within its possession originals or copies of any documents regarding the Bucks for Brains Program or RCTF. All administration of the program is done by personnel of [UK]." To the extent that copies of any such records exist, "upon information and belief, they may be within the possession of [UK]." This office affirms the denial by KMSF of Dr. Hatemi's June 25, 2016, request based upon the reasoning found in 16-ORD-172 (In re: Lachin Hatemi/Kentucky Medical Services Foundation, rendered August 23, 2016), and the authorities upon which that decision was premised.
Here, as before, KMSF cannot produce that which it does not have nor is the agency required to "prove a negative" in order to refute a claim that certain records exist in the absence of a prima facie showing by the requester. See
Bowling v. Lexington Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005); 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 KSR to create or maintain" the records being sought from which their existence could be presumed); compare
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"); 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").
Our duty under the circumstances presented is not "to conduct an investigation in order to locate records whose existence or custody is in dispute[.]" 01-ORD-36, p. 2. In the absence of any objective proof to conclusively refute the assertion that personnel at UK administer the Program, and therefore presumably maintain the records in dispute, this office has no basis upon which to find that KMSF violated the Open Records Act.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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 Kentucky Lottery Corporation v. Stewart, 41 S.W.3d 860, 864 (Ky. App. 2001)(expressly agreeing with decisions of the Attorney General holding that "an open records request should be evaluated independently of whether or not the requester is a party or potential party to litigation"), the Court of Appeals rejected this position. See 16-ORD-064; 16-ORD-172.
2 As in 16-ORD-057, 16-ORD-064, and 16-ORD-172, this office finds that KMSF has not presented "clear and convincing evidence" that Dr. Hatemi's request is unreasonably burdensome or made "for purposes of harassment," i.e. , intended to disrupt other essential functions of KMSF, as required to justify its denial on the basis of KRS 61.872(6), which it also invoked for the first time on appeal. See 16-ORD-057, pp. 4-5. KMSF relies on the fact that Dr. Hatemi has "persisted in his efforts to file serial, ongoing" requests following issuance of 15-ORD-205, "each of which requires KMSF to devote significant resources to research and respond." However, "the obvious fact that complying with an open records request will consume both time and manpower is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden." Commonwealth v. Chestnut, 250 S.W.3d 655, 665 (Ky. 2008).