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 University of Louisville ("University") violated the Open Records Act in the disposition of Dr. Bruce M. Tyler's October 11, 2017, e-mailed request for a copy of the curriculum vitae ("CV") or the résumé for eight named employees of the History Department and five other named employees in other departments, "including the dates hired, promoted, and when employment ended and why[.]" 1 By e-mail dated October 13, 2017, Senior Compliance Officer Sherri Pawson advised Dr. Tyler that she had "asked the appropriate university officials to identify all CVs and send them to me for review. As you have asked for a large number of faculty, some of whom left U of L long ago, the records are likely in storage and not readily available." Ms. Pawson expected "it could take several weeks to determine what, if any," CVs the University possessed for the named individuals. With regard to Mr. Tyler's request for "dates hired, promoted and when employment ended, " Ms. Pawson advised that she was not aware of any record or list containing such information.
By e-mail dated November 9, 2017, Ms. Pawson advised Dr. Tyler that she would provide him with "copies of most recent vita/CV found on file" upon receipt of payment for the copies and postage costs. See KRS 61.872. Ms. Pawson further clarified that Dr. Tyler's assertion that each department is required to maintain these records and is "required to comply" was incorrect. "You may remember from your failed June 2015 open records appeal [15-ORD-116]," Ms. Pawson advised, "I explained some departments require CV updates [but] other units do not have this same requirement." Ms. Pawson also noted that she was unable to identify or locate "any record of an employee 'William Morrill' if you have additional information such as alternate name, social security number or employee ID numbers I will attempt another search."
On appeal, Dr. Tyler alleged that he received CVs and records that "were not up to date and large sections of information were missing." 2 Dr. Tyler then proceeded to list seven perceived omissions and discrepancies among the records that he received. According to Dr. Tyler, "Deans Leonard, Keeling and [C]hair Blake Beattie know that I filed a legal action against them and they are evading the letter and spirit of the KY Open Records law." Dr. Tyler asked the Attorney General to "[m]ake them comply and send me a letter to that [e]ffect. Secondly, send a notice and explanation to Interim President Greg Postel." However, this office must respectfully decline to grant Dr. Tyler's request as the role of the Attorney General in adjudicating an Open Records dispute is narrowly defined by KRS 61.880(2), and this office is without authority to deviate from that statutory mandate. See OAG 89-81; 03-ORD-061; 08-ORD-172. Based upon the following, this office affirms the University's disposition of Dr. Tyler's request.
Upon receiving notification of Dr. Tyler's appeal from this office, Ms. Pawson supplemented her initial response on behalf of the University. In addressing Dr. Tyler's claim that records were purposely removed or withheld, Ms. Pawson advised that she was "confident a review of the activities associated with this open records request would show that my colleagues throughout the University performed their due diligence to identify and provide the document." As in prior appeals, the University observed, Dr. Tyler maintains that "records must exist that comport to his conceived notions regarding the submission and retention of CVs, but that is just not the case." Ms. Pawson advised that in responses to prior appeals by Dr. Tyler, she "explained that faculty within the University follow the requirements of their unit -- some units require certain documentation and it varies by unit. There is no University wide mandate as Dr. Tyler believes." Insofar as the Office of Faculty Personnel maintains the "official and permanent promotion/tenure file for all University faculty, " Ms. Pawson explained, "that office sent me the most recent version they had on file." To the extent any departmental offices and/or units may require such records, "there is no record retention policy that requires offices to permanently retain such records at the unit level."
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 a certain record exists. See Bowling v. Lexington-Fayette Urban County Gov't, 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"); 07-ORD-188; 12-ORD-087; 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"); 12-ORD-195. Under the circumstances presented, 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. When some of the documents requested have been disclosed, this office has generally declined to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 4; 12-ORD-087.
On those occasions when a public agency denies that additional responsive documents exist, as in this case, and the record on appeal supports rather than refutes that contention, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"). The record on appeal is devoid of any evidence to conclusively refute the agency's position that no additional documents responsive to Dr. Tyler's request exist notwithstanding any discrepancies that Dr. Tyler perceives between the CVs provided and those Dr. Tyler believes may or should exist. "[O]bjections to alleged inaccuracies and omissions in the records disclosed" cannot be resolved in the context of an Open Records Appeal. 10-ORD-178, p. 2; 12-ORD-162. Nor can this office direct a public agency to create records "or declare is failure to do so a subversion of the intent of the Open Records Act. " 95-ORD-48, p. 2; 15-ORD-164. Likewise, the University wats not statutorily obligated to create a record or compile a list containing "he dates hired, promoted, and when employment ended and why" for the named individuals.
Early on, this office clarified that "[t]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. For this reason, the Attorney General has consistently held that requests for information as opposed to requests for public records, "need not be honored." 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080. In addressing this question, the Attorney General has long recognized that "obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. " 04-ORD-080, p. 13 (citation omitted). A public agency is not required under the Act to gather and supply information independent of that which is set forth in public records. Id. Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id. p. 5, OAG 91-12, p. 5. A review of the statutory language upon which these decisions are premised, including KRS 61.871, KRS 61.872(1), and KRS 61.872(2), validates this position. Accordingly, the University did not violate the Open Records Act in denying Dr. Tyler's request for the specified information because no existing document was responsive to his request.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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