Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky Board of Medical Licensure ("KBML") violated the Open Records Act in its disposition of numerous requests for various records. For the reasons set forth below, we find that KBML violated the Act with respect to one of the eight requests on appeal.
At issue in this appeal are open records requests submitted by Andrew Wood ("Appellant") on July 6, 2017, and July 27, 2017, to the KBML. Bertha Wallen, Open Records Custodian, KBML, responded to the July 6 request on July 14, 1 and to the July 27 request on August 1, 2017. Appellant takes issue with KBML's responses to two specific requests from the July 6 requests, and six responses from the July 27 requests. 2 The July 6 requests and July 14 responses being appealed are:
8. All orders issued by any hearing panel from January 1, 2010, until July 5, 2017, which contains [ sic ] the word "alcohol."
Response : Be advised that we do not maintain records in a searchable format that meet the criteria you have requested.
No. 9 Any grievances filed by the Foundation or other individuals from January 1, 2010, until July 5, 2017, which contains the word "alcohol," which did not result in the imposition of disciplinary or other adverse action.
Response : Be advised that we do not maintain records in a searchable format that meet the criteria you have requested.
The July 27 requests and August 1 responses being appealed are:
No. 4. All e-mails sent or received from Michael S. Rodman between January 1, 2017, and July 27, 2017. 3
Response : Per our retention policy, routine emails are not maintained longer than 30 days. All others are not maintained in a searchable format to meet the criteria requested.
No. 7. Documents related to any complaint issued by an inquiry panel in which the complaint was dismissed at an administrative hearing from January 1, 2000, and July 27, 2017.
Response : This information is not maintained in a searchable format that will meet your criteria.
No. 8. All e-mails sent or received by any KBML employee, board member, or agent to any of the persons contracted to serve as hearing officers for KBML.
Response : This information is not maintained in a searchable format that will meet your criteria.
No. 10. A complete listing of all KBML approved "residential treatment facility with expertise in treating healthcare professionals."
Response : No such records were found.
No. 11. A complete listing of all KBML approved facilities which can conduct a 96-hour inpatient evaluation of a healthcare professional.
Response : No such records were found.
No. 13. Any policies or communications related to members, employees, or agents of KBML providing KASPER reports to the Foundation or its agents.
Response : After a search no such records exist. If they do, they are not maintained in a searchable format to meet the criteria requested.
Regarding items # 8 and # 9 of the July 14 responses, and items # 4, # 7, and # 8, of the August 1 responses, Appellant referenced 15-ORD-011, wherein KBML was found in violation of the Act for failing to conduct reasonable searches for responsive documents. In that decision, we cited a Kentucky Supreme Court decision for the proposition that "An agency "should not be able to rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request."
Commonwealth v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008). Appellant complains that KBML cannot deny a "properly framed open records request simply because it does not keep records in a searchable format. " Appellant claims that the records posted on the KBML website are "searchable" and that KBML is disingenuous in claiming otherwise.
Leanne Diakov, General Counsel, responding to the appeal on behalf of KBML, first addressed Appellant's complaints regarding responses to # 8 and # 9 of the July 14 responses, and items # 7, and # 8 of the August 1 responses. KBML explained that these requests were similar to the requests at issue in 16-ORD-242 where this office upheld the Kentucky Housing Corporation's denial of an "any and all" type of request where there was no mechanism through which to identify and locate all responsive documents.
In regards to Appellant's complaint that KBML does not keep its records in an electronically searchable format, KBML explained its remedial actions following issuance of 15-ORD-011 which found that it had subverted the intent of the Open Records Act in failing to store and maintain access to public records; violated the Act in failing to conduct reasonable searches for responsive documents; and in denying properly formed requests as overbroad and as not consistent with its own internal categorization. Those remedial actions included KBML's counsel and a board member meeting with staff of the Office of the Attorney General to review its retention of electronic communications and other records. KBML counsel and staff then met with the staff of the Department for Library and Archives and, as a result of these discussions, a Retention of Electronic Communications policy was adopted by KBML as of February 25, 2015. Pursuant to that policy:
all incoming and outgoing official correspondence/ messages via e-mail (i.e. "related to the major activities, organizational functions, history and programs of the Board such as would typically be written upon official Board letterhead or related to an individual applicant or licensee" ) "shall not be retained electronically but shall be retained in paper form" and "shall be printed to paper form immediately upon receipt or upon being sent and shall then be filed in an appropriate paper file" (maintained according to the applicant/licensee's name, license number, investigation number or case number) . In addition, routine correspondence/ messages via email (i.e. "related to the day-to-day activities of the Board and not related to a specific application, investigation or case") shall [be] moved to a separate "Routine" file in the employee's Inbox after being read and then automatically deleted after thirty (30) days. Non business-related correspondence/ messages via email shall be deleted from an employee's Inbox and Sent files immediately and shall not be retained electronically or in any other form.
This policy explains why KBML was able to provide some emails but not "routine" emails older than 30 days. KBML maintains their files according to the applicant/licensee's name, license number, investigation number or case number, and so was responding appropriately when it stated that it did not keep email records in a format that is searchable electronically, but could produce "official" emails which could be identified by applicant/licensee's name, license number, investigation number or case number. Thus, KBML was unable to search for "all emails sent or received by any KBML employee. . . " as it does not retain all emails, and those emails it does retain are kept according to the applicant/licensee's name, license number, investigation number or case number.
In these circumstances, we believe that KRS 61.872(3)(a) and (b) are relevant to our analysis.
KRS 61.872(3)(a) and (b), state:
A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
The Open Records Act thus contemplates records access by one of two means: on-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. A requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. A requester whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of records, without first inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52; 96-ORD-186; 97-ORD-46; 03-ORD-67.
Appellant, according to the record on appeal, has his office in Fayette County, and requested copies without first inspecting the records at KMBL's offices in Jefferson County. In these circumstances it was necessary for him to satisfy the additional burden required by KRS 61.872(3)(b). Whereas KRS 61.872(2) requires, generally, that the requester "describe" the records which he wishes to access by on-site inspection, KRS 61.872(3)(b) requires the requester to " precisely describe[]" the records which he wishes to access by mail. Chestnut, 250 S.W.3d at 661. A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside University Dictionary 926 (1988); "strictly defined; accurately stated; definite, " Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963). A requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in definite, specific, and unequivocal terms the records he wishes to access by mail. 97-ORD-46, p. 3; 03-ORD-067. As Mr. Wood's requests would require research by KBML to identify the desired records, they did not describe the requested records in definite, specific, and unequivocal terms, and so the records were not "readily available" in the agency, pursuant to KRS 61.872(3)(b). We also note that KBML provided "Board Action Reports for January 2010 through June 2017" to the Appellant and that these "lists contain all disciplinary actions that may be able to assist you in your research."
In 16-ORD-242, this Office found that the Kentucky Housing Corporation ("KHC") did not violate the Act where records were not precisely described, and where the agency had no mechanism by which it could identify and locate all responsive records based on the criteria provided. In that decision, the requester claimed that he had reasonably identified records to be made available. However, the requests were for "any and all records" which met the requester's criteria, such as projects where KHC had denied or withdrawn Low Income Housing Tax Credits because of a change in scope of the project. This Office determined that, since KHC did not "maintain responsive records based on the criteria provided in the normal course of business," that the requests would have required KHC to conduct exhaustive research in order to comply with the requests. See, also 96-ORD-69 (records were described with sufficient clarity for agency to identify the records but agency did not maintain the records "in such a fashion that either a list was kept or that they could be readily identified and located"). As KBML maintains its records according to specific applicant/licensee's name, license number, investigation number or case number, pursuant to its operational needs, fulfillment of Appellant's request would have required exhaustive research. We thus find no violation of the Act in KBML's disposition of requests # 8 and # 9 of July 6, or # 7, and # 8 of the July 27 request.
In regards to request # 4 ("All e-mails sent or received from Michael S. Rodman between January 1, 2017, and July 27, 2017), KBML's explanation of how it maintains electronic communication reflects why it could not provide those records. KBML's retention policy for electronic communications requires official communications to be printed and kept in the appropriate applicant/licensee's file; the electronic message is specifically not retained. As KBML does not retain all emails -- routine correspondence emails are deleted after 30 days -- and official communications are kept in hard copy in the applicant's or licensee's file, KBML could not provide the requested records and we find no violation in its response to request # 4.
In regards to requests # 10 and # 11, KBML's August 1 responses stated that "No such records were found." Appellant disputes this response due to the fact that KBML's counsel proposed, in a disciplinary matter, that a licensee complete evaluation or treatment at a "Board-approved facility." We find KBML's initial response to be lacking but its response on appeal clarified that no such records exist. "Obviously, a public agency cannot afford a requester access to records which do not exist." 99-ORD-98. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 99-ORD-150. Moreover, an agency is not required to "prove a negative" when explaining that it does not have a record or that it does not exist. 09-ORD-194; compare, 16-ORD-101 (existence of a statute directing the creation of the requested record creates a presumption of the record's existence). Although KBML's initial response did not affirmatively state that the records do not exist, it rectified that omission on appeal and we find no violation of the Act by KBML in the disposition of these two requests.
On appeal, KBML failed to address Appellant's complaint regarding request # 13 ("Any policies or communications related to members, employees, or agents of KBML providing KASPER reports to the Foundation or its agents"). KBML's answer was that: "After a search no such records exist. If they do, they are not maintained in a searchable format to meet the criteria requested." This response contradicts itself by first stating that no such records exist, but then it allows for the possibility that the records do exist. As we found in regards to items # 10 and # 11, the agency fulfills its responsibility, where no responsive records exist, by affirmatively so stating. Because of the self-contradictory nature of its response, KBML has not affirmatively stated that the records do not exist. Therefore, it has the duty to explain, pursuant to KRS 61.880(1), why the request was denied. This failure to either affirmatively deny the existence of a responsive record, or provide the responsive record, constitutes a violation of the Act. KBML must clarify its response to Appellant by denying the records' existence or providing the responsive records.
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 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 Although Appellant did not make a specific complaint that KBML's response of July 14 was untimely, we note that the response was not issued within three business days after receipt. KRS 61.880(1), requires, public agencies to respond within "three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision." The late response constitutes a procedural violation by KBML.
2 KBML explained that "Between July 5 and September 6, 2017, Mr. Wood or his colleague Gera Meyman submitted seven (7) letter/emails requesting thirty-six (36) specific records/items or categories of records/items to the Kentucky Board of Medical Licensure. Mr. Wood appeals the Open Records Custodian's responses in regard to eight (8) of those records/items."
3 Michael S. Rodman is listed as the Executive Director on KBML's website.