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 Pike County Board of Education ("Board") violated the Open Records Act, specifically KRS 61.880(1), in failing to issue a timely written response upon receipt of John Hicks' request, which contains a notation indicating that it was hand-delivered on "Feb. 15-18." Mr. Hicks requested the following:
1) A "record to show that I have been hired as a substitute teacher (districtwide) in the Pike County School System since 2008-09 school thru this 2017-18 school year. "
2) Mostly duplicative of 1.
3) "[R]ecords on . . . teachers DANNY COLEMAN and KATHERN [sic] KISCADEN to show that they were admonished for violating the C.A.T.S. TEST. . . . Send record to show you know the definition of admonishment."
4) "[R]ecords to show how these two teachers . . . can be qualified to teach and me not be qualified to teach. . . . Send record of the other reasons other [sic] than age to choose the younger person."
5) "[R]ecords to show what Judge Coleman based his decision on in ruling for the board a SUMMARY JUDGEMENT [sic]."
6) "[R]ecord of the law KRS 161.100."
7) "[R]ecord to show Preece was hired [sic] what exact date in 09-10 school year.
8) "[R]ecord to show Preece was certified in 09-10 to teach. "
9) "[R]ecord to show Preece had tenure and continuing contract, when she was hired to teach in 09-10 school year.
10) "[R]ecord to show the Pike County School [B]oard did not post Suzanne Preece['s] teaching job."
11) Duplicative of 10.
12) Duplicative of 9.
13) Duplicative of 1.
14) "[R]ecord to show Suzanne Preece was hired on an emergency in August of 2010 after her certificate EXPIRED. "
15) "[R]ecord to show that Suzanne Preece['s] teaching certificate expired June 3, 2010."
16) Duplicative of 1 and 13.
By letter dated March 21, 2018, Mr. Hicks initiated this appeal "to complain about another School System (Pike County School System)" not responding to his request in a timely fashion, i.e. , within three workdays per KRS 61.880(1). However, upon receiving notification of Mr. Hicks' appeal from this office, attorney Neal Smith advised that he receives and reviews all requests in his capacity as general counsel for the Board to ensure that a written response is provided within three days. Mr. Smith stated that he does not have any record of the Pike County School District receiving Mr. Hicks' request on February 15, 2018, "or at any time thereafter" until he received the copy attached to the notification sent by this office.
Mr. Smith further explained that his client has been a party to litigation involving Mr. Hicks "since May 24, 2010 over issues pertinent to the documents now requested by Mr. Hicks. We received a unanimous Court of Appeals Opinion rendered by the Court on February 2, 2018 affirming dismissal of the entirety of Mr. Hicks' complaint. That Opinion is now final." Mr. Hicks advised that his client has "received and responded to virtually identical Open Records Requests from Mr. Hicks over the past many years. The documents have been provided to both Mr. Hicks and his attorney." Nevertheless, Mr. Smith indicated that he would provide the records currently in dispute to Mr. Hicks now that his client had received the request. With the exception of "recent letters hiring Mr. Hicks as a substitute subsequent to our last response" to a request he made, the Board is "reasonably certain that all of these documents have been previously provided to Mr. Hicks[.]"
This office has consistently recognized that a public agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6. See 05-ORD-198; 13-ORD-055. Accordingly, if the Board received identical or duplicative requests from Mr. Hicks for the same public records, it was not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6. See 05-ORD-198; 15-ORD-212. Unless a requester such as Mr. Hicks "can explain the necessity of reproducing the same records which have already been released to him, such as loss or destruction of the records," a public agency such as the Board is not required to satisfy the same request multiple times. 05-ORD-021, p. 8. This office has no reason to question the veracity of the Board, nor does Mr. Hicks dispute its assertion regarding the duplicative nature of his request. However, the record on appeal does not include a copy of any previous request(s) for this office to review. In any event, Mr. Smith supplemented his response on behalf of the Board in a letter directed to Mr. Hicks on April 4, 2018, a copy of which Mr. Smith provided for consideration by this office in resolving the instant appeal.
Despite having no statutory obligation to honor Mr. Hicks' request, insofar as it was duplicative, the Board provided Mr. Hicks with a copy of all existing documents responsive to his current request. 1 Any issues regarding the documents provided to Mr. Hicks are now moot per 40 KAR 1:030, Section 6. The Board also satisfactorily explained the nonexistence of certain documents responsive to items 3, 9, and 10, above. With regard to Mr. Hicks' request for a record showing what authority the Pike County Circuit Court, i.e. , Judge Coleman, relied upon as the basis for sustaining the Board's Motion for Summary Judgment, Mr. Smith advised the Board "has no such record." However, "it can be found in Kentucky Court of Appeals case file 2015-CA-001973 and Pike Circuit Court file 10-CI-00807." See note 1, above.
In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . 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." However, 61.880(1) presupposes actual receipt of the request. Mr. Smith maintained the Board maintained did not receive Mr. Hicks' request until March 30, 2018, notwithstanding the February 15, 2018, notation appearing on the first page. The Attorney General has consistently acknowledged the inability to conclusively resolve factual disputes, and specifically ones concerning actual delivery and receipt of a request. See OAG 89-81; 03-ORD-172; 04-ORD-223; 08-ORD-066; 12-ORD-122. When presented with such factual disputes, the Attorney General has recognized that "this office is not equipped to resolve factual dispute[s] [when presented with conflicting factual narratives]." 96-ORD-70, p. 3; 09-ORD-120; 10-ORD-122. As in the cited decisions, the record here does not contain sufficient evidence concerning the delivery and receipt of Mr. Hicks' request for this office to conclusively resolve the related factual issue-whether the Board received his request prior to receiving the copy attached to his appeal. This office has no reason to question Mr. Hicks' veracity; however, the record is equally lacking in terms of any basis to question Mr. Smith's veracity or conclusively refute his account. Given this conflicting evidence regarding the date when the Board actually received Mr. Hicks' request, a conclusive resolution of the related procedural issue cannot be reached. This office has no basis upon which to find the Board violated KRS 61.880(1). See 14-ORD-132 (John Hicks/Education Professional Standards Board); 18-ORD-038.
Likewise, this office has no basis upon which to find the Board committed a substantive violation of the Act in partially denying Mr. Hick's request. 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 certain records exist. See
Bowling v. Lexington-Fayette Urban Cnty. 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"); 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring agency to create or maintain" the records being sought from which their existence could be presumed) ; 07-ORD-188; 16-ORD-134. No such authority has been cited here, nor has Mr. Hicks made a prima facie showing. Rather, no facts or evidence have been presented to suggest additional responsive documents were created or maintained. See 16-ORD-195. 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" );
Cabinet for Health and Family Serv. v. Todd Cnty. Std., 488 S.W.3d 1, 3-4 (Ky. App. 2016)(affirming opinion and order enforcing 11-ORD-074, holding "the existence of a statute, regulation or case law directing the creation of the requested record creates a presumption of the record's existence . . . " but a public agency can overcome this rebuttable presumption "by explaining why the 'hoped-for record' does not exist").
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. A public agency violates KRS 61.880(1) "if it fails to advise the requesting party whether the" records exist, but discharges its duty under the Act in advising that records being sought do not exist following a reasonable search, and explaining why, if appropriate. 98-ORD-154, p. 2 (citation omitted); 16-ORD-172. In the absence of any facts or evidence from which the existence of additional responsive documents within the possession of the Board can be presumed, this office has no basis upon which to find the Board violated the Open Records Act in denying Hicks' request. See 12-ORD-030 (affirming denial of request for nonexistent records where appellant did not offer any "irrefutable proof that such [records] were created or still exist"); 16-ORD-076.
Either party may appeal this decision may appeal 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.
Footnotes
Footnotes
1 The Open Records Act does not require a public agency to conduct research or compile information to conform to a given request. See OAG 89-45. This office has also specifically construed the definition of "public record" codified at KRS 61.870(2) to exclude reference materials, including statutes, administrative regulations, and case law. Acknowledging that such materials might technically qualify as "public records" due to being "in the possession of or retained by a public agency," this office nevertheless concluded that disclosure of such materials "would not enable the public to monitor public agency operations or serve any purpose which underlies the Open Records Act," so they could not be characterized as "public records" within the scope and meaning of the Act. 99-ORD-35, p. 4. The Attorney General contrasted reference materials generally available in a library with public records that fall within the broad parameters of KRS 61.870(2), and "reflect the daily functioning, programs, and operations of [a public agency]." Id. Even assuming that reference materials are public records within the meaning of KRS 61.870(2), a public agency is not obligated to conduct research by locating relevant statutes and regulations concerning the subject of a request in order to comply. See 08-ORD-114; 10-ORD-207.; 16-ORD-195.