Request By:
William Edward Evitts
Bill Swinford
William E. Thro
Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
William Edward Evitts initiated this appeal by letter dated April 19, 2017, challenging the denial by the University of Kentucky ("UK") of his April 5, 2017, request for "every document or record or developed study or undeveloped study [bearing] my name," such as: 1
substance abuse/[depression or] frustrating situations in life or work/how animals relate to those (dogs) /attitude toward lawyers with or without dogs in office/life changes such as moving or divorce/anger with others in situations in life or driving/ road rage. Any tobacco research/seeing celebrities['] reactions/reactions to race how they treat me (good or bad)/reactions to people with disabilities, sexual orientation, kids with disabilities and homeless people. What I watch on TV/how I feel toward politics and people that don't have my same belief/sex life in marriage/energy level during these times/what I eat my diet/driving habits/addiction behaviors. Unauthorized medications.
In a timely written response per KRS 61.880(1), Official Records Custodian Bill Swinford advised Mr. Evitts that "both the University's Human Resources Office and Facilities Management" have advised "that they have no records responsive to your request." Upon receiving notification of Mr. Evitts' appeal from this office, William E. Thro, General Counsel, responded on behalf of UK. Mr. Thro first reiterated that no responsive documents exist. According to UK, Mr. Evitts "had indicated to the University's Open Records Office that he wanted all documents pertaining to the study while employed with the University as a STEPS employee." 2 Noting that Mr. Evitts directed his request to "Custodian of Records of University of Kentucky personnel," Mr. Thro explained that UK "conducted a thorough search for those records with the Human Resources [D]epartment, Facilities Management, and STEPS (the temporary employment office)." 3 Quoting
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005), and 07-ORD-190, Mr. Thro maintained that, "[h]aving made a good faith search for the records and concluded the records do not exist," UK has discharged its duty under the Open Records Act. Citing
Cabinet for Health and Family Services v. Todd County Standard, Inc., 2015 WL 8488911, at *2 (Ky. App. December 11, 2015)("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 a public agency can overcome this rebuttable presumption "by explaining why the 'hoped-for record' does not exist"), now published at 488 S.W.3d 1, 3-4 (Ky. App. 2016), UK correctly observed that Mr. Evitts "has not identified any duty on the part of the University to keep such study. Therefore, Mr. Evitts has not demonstrated a presumption exists." UK clarified that "Mr. Evitts seems to believe that he took part in a University study. Mr. Evitts is mistaken." Inasmuch as Mr. Evitts apparently did not participate in a study that UK conducted, its position that no responsive documents exist is credible. See 16-ORD-014; 16-ORD-134; compare 15-ORD-210.
The right to inspect records, and the corollary right to receive copies, 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 cannot produce that which it does not have nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist. See
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005) ("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"); 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 agency to create or maintain" the records being sought from which their existence could be presumed) ; 07-ORD-188; 16-ORD-134; 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"); Cabinet for Health and Family Services v. Todd County Standard , above (affirming opinion and order enforcing 11-ORD-074); 12-ORD-195. 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 the Attorney General "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; 12-ORD-231.
A public agency violates KRS 61.880(1) "if it fails to advise the requesting party whether the" records exist, but discharges its duty under the Act in advising that records being sought do not exist following a reasonable search, and explaining why, if appropriate. 98-ORD-154, p. 2 (citation omitted); 16-ORD-172. In the absence of any facts or evidence from which the existence of responsive documents within the possession of UK can be presumed, this office has no basis upon which to find that UK violated the Open Records Act in denying Mr. Evitts' request. See 16-ORD-189.
Either party may appeal this decision may appeal 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 must 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 As framed, Mr. Evitts' request "every document or record . . . bearing my name or . . . study" encompasses more than just a "study." (Emphasis added.) However, a requester is only entitled to receive copies by mail under KRS 61.872(3)(b) if he "precisely describes" the records, which must be "readily available within the agency." This office has recognized that a request for "any public record relating to [a requester, see KRS 61.884] or in which [he] is mentioned by name" lacks adequate precision to satisfy this provision. See 12-ORD-049. Further, KRS 61.872(3)(b) would apply here regardless given that Mr. Evitts' mailing address indicates that he resides in Woodford County and the records, if any others were being sought and exist, are in Fayette County. Accordingly, even if Mr. Evitts intended to request more than just any responsive study, which is unclear from his request as framed, he would not be entitled to receive copies by mail.
2 The record is unclear as to whether this clarification was provided verbally or UK assumed the scope was restricted to "records pertaining to the study" based on the fact that Mr. Evitts directed his request to "Custodian of Records of University of Kentucky personnel."
3 A public agency is required to make "'a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested[.]'" 95-ORD-96, p. 4 (citation omitted). Further, a public agency must specify the steps taken to identify and locate any such records per the standard of 95-ORD-96 in order to fully discharge its duty. See 08-ORD-206; 10-ORD-222; 11-ORD-041; 12-ORD-087. "In assessing the adequacy of an agency's search we 'need not go further to test the expertise of the agency, or to question its veracity, when nothing appears to raise the issue of good faith.'" 95-ORD-96, p. 7, citing Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977). Inasmuch as UK advised that none of these departments have any responsive documents, UK appears to have conducted a reasonable search and our decision is premised on this assumption. "Absent proof that [UK] failed to use methods which could reasonably be expected to produce the records requested," this office has no basis upon which to question its good faith. 12-ORD-153, p. 4. The Attorney General trusts "that [UK] directed its search not only to the first and most obvious places where responsive records could be located but to all places that might yield responsive records." Id.; compare 15-ORD-210.