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 Office of the Attorney General (OAG) violated the Open Records Act in the disposition of attorney Wayne Collier's October 27, 2017, request for various documents relating to water quality and a piece of property in Letcher County, Kentucky. For the reasons that follow, we find no violation of the Act.
In his request, Mr. Collier sought "public records that relate to the property and water wells located at" a certain address in Letcher County, "including the property owned, claimed to be owned or occupied by Edison Banks, Pamela Banks, Marty Richardson and Mary Richardson in that vicinity," between January 1, 2008, and August 31, 2013, including but not limited to:
1. Sampling with regard to the Property by Kentucky Division of Water, including (but not limited to) those which were conducted on October 1, 2008
2. October 28, 2008, letter from Edison G. Banks, II, to the Kentucky Division of Water
3. The November 13, 2008, tests and report from the Kentucky Division of Water regarding Lab Sample Number AFO5683 regarding the Pamela Banks well in Letcher County
4. E-mails from Edison G. Banks, II, to the Kentucky Division of Water on January 7, 2009
5. The March 2, 2009, letters from Edison G. Banks, II, to the Kentucky Division of Water concerning a Grand Jury subpoena for Kelly Fugate and Ray Crabtree
6. Subpoena for the Commissioner of the Department of Natural Resources sent by Edison G. Banks, II
7. The March 10, 2009, letter from Edison G. Banks, II, to the Kentucky Attorney General's Office
8. The April 16, 2009, letter from Edison G. Banks, II, to the Kentucky Attorney General's Office
9. Sampling with regard to the Property by Kentucky Division of Water, including those which were conducted on October 27, 2009
10. The December 9, 2009, tests and report from the Kentucky Division of Water regarding Lab Sample Number AG04872 regarding the Edison Banks well in Letcher County
11. All requests for assistance made to the Kentucky Natural Resources and Environmental Protection Cabinet, Department for Environmental Protection; the Kentucky Department for Natural Resources, Division of Oil and Gas Conservation; the Kentucky Energy and Environment Cabinet, Department for Environmental Protection, Division of Environmental Program Support relating to the Property
Mr. Collier's request was received by OAG on October 30, 2017.
On November 2, 2017, Assistant Attorney General Taylor Payne responded to the request as follows:
This office has conducted an extensive search for the documents you requested and has not located any documents responsive to your request. Certain documents may have been disposed of in accordance with the retention schedule for this office. We suggest you send a request to the Department of Environmental Protection, Division of Water at 300 Sower Blvd., Third Floor, Frankfort, Kentucky, 40601, as it may be the custodian of these records.
Mr. Collier initiated an appeal on November 4, 2017, alleging that OAG had not conducted an adequate search for all responsive records or had made an "inconclusive" response.
Mr. Payne responded to the appeal on November 13, 2017, acknowledging the fact that Mr. Collier's request was not limited to the "eleven specific documents that he believed were in the possession of the OAG." He further states:
Upon receiving the open records request, this office conducted an extensive search for any responsive records, including the eleven documents identified by Mr. Collier. OAG searched through an internal mail log database for names and terms referenced in the identified eleven documents. Those searches did not produce any responsive records. OAG additionally searched within employees' records who handle environmental and water issues, but found no responsive records.
OAG responded to Mr. Collier that no responsive records were located. Because Mr. Collier identified eleven documents he believed to be in our possession, and those documents appear to be from a period in 2008-2009, OAG further indicated that if the records had been in our possession at one time, the office might have destroyed the documents in accordance with the general retention schedule for state agencies. According to this appeal and the attached document [item 7 from Mr. Collier's request, which indicated several enclosures] , it appears many of the requested records are routine correspondence. State Agency Records Retention Schedule , Series M0002 (routine correspondence is considered documentation of general work activities related to the functions, programs and policies of a state agency). No records reveal that OAG initiated any formal action pertaining to the activity referenced in the records sought by Mr. Collier . Public agencies are directed to retain routine correspondence for no longer than two years. See id. If that routine correspondence was sent to OAG in 2009, the documents were likely destroyed in adherence to the retention schedule.
(Emphasis added.)
On November 13, 2017, Mr. Collier submitted numerous pages of records from 2008 and 2009 pertaining to the matter to which his request relates, pointing out that Edison G. Banks II mentioned in a 2009 e-mail that he "had sent written materials and a CD to Mr. Todd Lewis, an Assistant Attorney General." Mr. Payne replied to Mr. Collier on November 20, 2017:
As we stated in our November 2, 2017, response, this office conducted an extensive search for the documents you requested, including the documents you have now provided to this office, and were unable to locate any responsive documents.
We note that Mr. Collier does not state the provenance of the documents he has submitted into the record; nor does he at any time imply that they were obtained from the Office of the Attorney General.
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. When records are destroyed in accordance with a records retention schedule, there is no violation of the law. 15-ORD-144; 14-ORD-065. From our review of the documents provided by Mr. Collier, it appears that the Attorney General was asked in 2008 and 2009 to intervene in some manner regarding the water quality in Letcher County and declined to take any formal action. Therefore, any related documents would have constituted routine correspondence, including attachments or enclosures. It is therefore reasonable, in light of the records retention schedule, to conclude that those documents were not retained longer than two years.
A public agency is required to "expend reasonable efforts to identify and locate the requested records." 95-ORD-96. Thus, the agency need only "make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Id. (quoting
Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978)). From OAG's representations, we conclude that a reasonable search was conducted. Accordingly, we find no violation of the Open Records Act in OAG's disposition of this request.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.