Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Louisville violated the Open Records Act by denying a request for a list of former faculty members. For the reasons set forth below, we find that the University of Louisville did not substantively violate the Open Records Act.
On October 24, 2017, Dr. Bruce Tyler sent an email 1 request to the University of Louisville for a "list of faculty persons terminated and/or forced to resign from 1990 to 2017 at the UofL." The email was sent to Sherri Pawson, Senior Compliance Officer, University of Louisville. Ms. Pawson responded on October 31, 2017, "Regarding your request for a list of faculty, including dates and departments, that were 'terminated and/or forced to resign' I have not identified a list that contains this information. Human Resources, nor the office of Faculty Affairs, maintains such." Dr. Tyler replied on that same day, "I think the U of L Board of Trustees have these records and there is a liaison, Mr. Jake Beamer, in the President's office." Ms. Pawson responded to this email on November 6, 2017, "regarding your questions re: records maintained by the Board of Trustees -- I have not identified any such list." Dr. Tyler emailed Ms. Pawson on November 8, 2017, "The Board of Trustees are the only U of L body that can TERMINATE faculty and officers of the University. It is always written in their reports. They must have a written and compiled records and that is what I am requesting." Ms. Pawson responded on November 9, 2017:
I confirmed with appropriate university officials there is no comprehensive list such as what you describe. Faculty personnel actions are recorded in the Board of Trustees minutes. You can access those records at http://louisville.edu/president/board-of-trustees/minutes back to 2000 or, if you prefer, identify the specific set(s) ofminutes you want copies of and upon receipt of payment I can mail you copies. Prior to that date, the University Archives maintains paper copies of minutes you can come in to view those in person. The Archives [are] open 9-5 M-F.
From these email exchanges, it is clear that the University did not have the list of former faculty members that Dr. Tyler requested. Our office has long recognized that 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. The University discharged its responsibility by communicating in writing to Dr. Tyler that the list he requested does not exist. Furthermore, a public agency is not required to compile a list or to create a record in response to an open records request. (See 12-ORD-026 and authorities cited therein.) Accordingly, the University's responses did not substantively violate the Open Records Act.
A party aggrieved by this decision may appeal it 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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