Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Department of Education ("KDE") violated the Kentucky Open Records Act in partially denying Justin Trout's August 10, 2017, request for "[a]ll correspondence related to Justin Trout at the Millard Area Technology Center and his performance in the format of text messages to/from" Laura Arnold, David Horseman, Linda Floyd, Gerri Austin, and Beth Hargis, "on their state[-]sponsored cellular devices during the time period 7-1-16 to 8-1-17." With regard to Linda Floyd, KDE advised that Dr. Floyd "separated from KDE on May 31, 2017. As Dr. Floyd was not provided a KDE-owned cell phone, KDE did not maintain any record of Dr. Floyd's text messages. " KDE quoted the definition of "public record" found at KRS 61.870(2) in support of its position that "the information requested is not subject to disclosure." Citing 16-ORD-019, KDE further asserted that a public agency is not required "to create, procure, or retrieve a record to accommodate a request." Asking the Attorney General "to investigate whether or not the mobile phones were state-sponsored," Mr. Trout appealed the agency's response because his "supervisor[, Dr. Floyd] was often seen with two phones. " Inasmuch as Mr. Trout focused exclusively on the denial of his August 10 request as to records of Dr. Floyd, our analysis will proceed accordingly. 1
Upon receiving notification of Mr. Trout's appeal from this office, Assistant General Counsel Ashley Lant responded on behalf of KDE. Ms. Lant initially noted that Mr. Trout's request for this office to investigate "whether or not the mobile phones were state sponsored" is beyond the scope of KRS 61.880(2), pursuant to which the Attorney General is authorized to "review a public agency's denial of a request to inspect a public record [.]" Having reiterated the agency's original response, Ms. Lant reaffirmed that during the relevant timeframe, Dr. Floyd "was not provided with a KDE-owned cellular phone. Dr. Floyd, who is retired and no longer employed by KDE, received partial reimbursement for her personal cellular phone usage during said timeframe, but did not have a cellular phone owned by KDE provided to her during the requested timeframe. " Ms. Lang emphasized that KDE has "never maintained copies of Dr. Floyd's text messages and has no authority to access her personal cellular phone. " Additionally, Ms. Lant, along with Mr. Horseman, Director of the Division of Technical Schools and Federal Programs, contacted Dr. Floyd on Thursday, October 5, 2017, by telephone, at which time Dr. Floyd verbally confirmed "that she did not have or use two cellular phones" during the relevant timeframe. 2 Dr. Floyd further advised that "she did not use a KDE-issued or KDE-owned cellular phone, nor did she use two personal cellular phones. "
Based upon the foregoing, Ms. Lant asserted that "KDE has made a good faith effort to confirm that Dr. Floyd did not have a KDE-issued or KDE-owned cellular phone during" the relevant timeframe. KDE noted that Mr. Trout has not produced any evidence beyond his own assertions to refute its position regarding this issue. Ms. Lant cited 17-ORD-170 (reaffirming line of decisions recognizing that a public agency denying access to records based on their nonexistence cannot be held to have violated the Act), in support of the position that KDE did not violate the Act in denying Mr. Trout's request as to Dr. Floyd's text messages (if any) on the facts presented.
Our scope of review in resolving the present dispute is defined at KRS 61.880(2), pursuant to which, the Attorney General "shall review the request and denial and issue . . . a written decision stating whether the agency violated provisions of [the Open Records Act] ." See 09-ORD-186; 12-ORD-065. Further, this office has consistently recognized that "it is not, in general, within our statutory charge to resolve questions of fact or to otherwise act as a trier of fact." 09-ORD-120, p. 4. 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's 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. This office has no basis to depart from that position here.
The right to inspect only attaches if the records in dispute are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. A public agency violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record [s] exist[]," but discharges its duty under the Act in affirmatively indicating that no such record[s] exist[], or advising that it lacks possession and explaining why, following a reasonable search, as KDE did here. 13-ORD-052, p. 3; 99-ORD-98; 04-ORD-205. The Attorney General has consistently so held. 04-ORD-205, p. 4; 99-ORD-98; 12-ORD-065; 14-ORD-049.
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records, 3 the Act only regulates public access to records that currently exist and that are in the possession or custody of the public agency to which the request is directed. "It does not impose an obligation on agencies to create, procure, or retrieve a record to accommodate a request. This is not to say that a public agency can somehow secret away public records on private premises, and thus avoid the requirements of the Open Records Act. " Id. 4 For example, if KDE had opted to maintain copies of Dr. Floyd's text messages, insofar as the messages pertained to "functions, activities, programs, or operations funded by state or local authority" 5 those records would arguably have been "accessible as non-exempt public records, " assuming that no statutory exemptions applied to part or all of the messages. 6 99-ORD-202, p. 2.
Our decisions in disputes arising under the Open Records Act are 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. However, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the record(s) being sought following the enactment of KRS 61.8715 in 1994. A public agency must explain the nonexistence of the records or its lack of possession if appropriate. See KRS 61.880(2)(c);
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" ). When, as in this case, a public agency denies that certain records exist in the possession or custody of the agency, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 11-ORD-137. KDE cannot produce that which it does not have nor is KDE required to "prove a negative" in order to refute a claim that certain records exist in the possession of the agency. See
Bowling v. Lexington Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005); 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 15-ORD-059 (requester expressed "reasonable confidence" that agency was paying for a cellular telephone for named employee and was "in the process of acquiring documents" to substantiate his claim, but agency did not violate the Act in denying request based on the records' nonexistence as the requester's belief did not constitute a prima facie showing).
Having denied that responsive documentation exists, after conducting a search in good faith (see 95-ORD-96), KDE now finds itself in the position of having to "prove a negative" in order to conclusively refute Mr. Trout's unsubstantiated claim that responsive text messages were not only created to begin with, but also still exist in the custody, possession, or control of the agency. 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 public agencies may 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, in Bowling 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." 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 records in the absence of a prima facie showing that records being sought did, in fact, exist in the possession of the agency. See 07-ORD-188; 11-ORD-209; 12-ORD-012. However, the Attorney General 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.
Mr. Trout has not cited any objective proof in support of his position that Dr. Floyd not only possessed two cellular telephones during the relevant timeframe, but also created text messages relating to his performance, and chose to maintain those messages rather than delete them; equally lacking is any proof that KDE chose to access let alone maintain the messages of Dr. Floyd during the normal course of business while Dr. Floyd was a KDE employee. 7 Regardless of whether KDE should or could have maintained any such records prior to Dr. Floyd separating from her employment at KDE, a question this office does not reach, Dr. Floyd retired prior to Mr. Trout's request and the record is devoid of any evidence to substantiate his belief that Dr. Floyd created responsive text messages or that KDE ever possessed the records even assuming that she did. 8 Notwithstanding the lack of contrary evidence, KDE provided a written explanation for the nonexistence of the requested text messages. Given that Dr. Floyd is no longer an employee of KDE, its explanation for the messages' nonexistence in the possession of the agency is entirely credible on these facts. The Attorney General has no basis upon which to find that KDE committed a violation of the Act in denying Mr. Trout's request under these circumstances. Compare 11-ORD-105 (agency violated the Act in denying request for photographs that were "given" to an employee upon his retirement, in accordance with a "common practice" of making copies in case the originals were lost or destroyed, and the agency was required to retrieve copies of responsive photographs from retired employee to facilitate public access to records on agency premises).
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 must be notified of any action in circuit court, but must not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 By letter dated August 21, 2017, Mr. Trout simultaneously appealed the partial denial by KDE of a separate August 10 request for copies of "email records" or correspondence for each of the five named accounts he listed, from July 1, 2016, to August 1, 2017, in addition to "any official or unofficial performance documentation" related to him. On appeal, Mr. Trout specifically challenged the "considerable portion of emailed information" that was redacted from responsive e-mails on the basis of the attorney-client privilege codified at KRE 503, incorporated into the Open Records Act by operation of KRS 61.878(1)(l). In response to Mr. Trout's appeal, KDE maintained that its reliance on the privilege was justified; however, "in an attempt to resolve this issue," KDE provided Mr. Trout with unredacted copies of the subject e-mails. Thus, any issues regarding the initial response of KDE in this regard are moot per 40 KAR 1:030 Section 6.
2 In this regard, the current dispute "is factual, and not legal, in nature." 06-ORD-266, p. 6; 16-ORD-172 (Although evidence presented, the authenticity of which had not been challenged, "strongly suggest[ed]" that responsive agreements existed, and that agency would retain copies of those agreements (if not originals), the absence of such agreements in the possession of the agency was, "simply stated, not actionable in an Open Records Appeal."); 12-ORD-065 (appellant reasonably assumed that a "resignation letter" existed in light of statement by public official but relied on what could "generally be described as conjecture or assumption which, however logical, does not constitute proof"); 14-ORD-049 (Attorney General "is not empowered to resolve a 'swearing contest' between the parties").
3 See KRS 61.8715.
4 This office has consistently recognized that "lack of actual possession is not a sufficient basis for denying access to records" if the records being sought are being held "at the instance of and as custodian on the [public agency's] behalf[.]" 08-ORD-206, pp. 7, 13; See 00-ORD-207 (settlement agreement in physical custody of insurance carrier); 04-ORD-123 (drainage records in physical custody of City's independent attorney); 05-ORD-015; 06-ORD-147; 08-ORD-206; compare 96-ORD-41 (holding that Department of Military Affairs properly denied request for documents relating to vending services at air national guard facility where those records were prepared by, and in the possession of, a private corporation, and were never in the Department's possession); 97-ORD-15 (holding that University of Kentucky was not obligated to retrieve a fee agreement between a University employee and a private attorney from the attorney in whose custody the document resided); 98-ORD-90 (holding that a correctional facility was not obligated to contact a toothpaste manufacturer to obtain a copy of the material safety data sheet for toothpaste used at the facility in order to satisfy an inmate's open records request); 09-ORD-009; 16-ORD-019.
5 KRS 61.870(2).
6 In 15-ORD-049, this office recognized that "[i]n the case of telephones or lines purchased or leased by public funds, records of their use belong to the public agency and are deemed to be public records. ( See 00-ORD-198 and decisions cited therein.)" 15-ORD-049, p. 2. However, any records of calls made on a personal telephone "are typically 'a result of the private contract with the phone company [or a] personal cell phone contract. 03-ORD-019." Id. In sum, whether those records constitute "public records" under KRS 61.870(2) "is dependent on the facts of the individual case."
7 KDE initially advised Mr. Trout, for example, that Dr. Beth Hargis could not locate any text messages relating to Mr. Trout as her "usual practice" is to delete her text messages upon receipt and review.
8 This office did note, in 15-ORD-226 (upon which KDE initially relied for the proposition that records of employees' private devices are not in the possession of the agency), "that a document created using public funds stored or otherwise hidden on a private cell phone retains its status as a public record and will still be subject to the Open Records Act." Id., p. 5. In addition, this office "admonishe[d] public employees against using private cell phones to carry out public work in an attempt to shield such communications from the purview of the Open Records Act." Id.