Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Open Records Decision
Summary : Kentucky Transportation Cabinet properly denied records destroyed pursuant to the applicable records retention schedule. The Cabinet sustained burden of proof by clear and convincing evidence to show that request for title applications for specific vehicle type was unreasonably burdensome.
Open Records Decision
The issue presented in this appeal is whether the Kentucky Transportation Cabinet ("Cabinet") violated the Open Records Act in the disposition of Mike Harris' ("Appellant's") requests for records. For the reasons stated below, we find that the Cabinet properly denied the request for title applications. However, we are unable to resolve the dispute between the Cabinet and Appellant regarding the email communications in the possession of the Cabinet.
On May 10, 2018, Appellant submitted an open records request to the Cabinet seeking three groups of records. Appellant sought copies of specific correspondence and title applications, described as follows:
1. All documents and correspondence both written and electronic from the Kentucky Transportation Cabinet, Division of Motor Vehicle Licensing, Department of Vehicle Regulation, Kentucky Transportation Cabinet Legal Division, and any other third party entity including but not limited to Assistant Director Godwin C. Onodu, Melissa Case, Todd T. Shipp, Matt D. Henderson, and Rick S. Taylor regarding licensing and titling of Low Speed Vehicles, Alternate Speed Vehicles, and/or Golf Carts from April 1, 2018 to present.
2. All Application for Kentucky Certificate of Title or Registration form TC 96-182 submitted to and approved by the Kentucky Department of Transportation Cabinet, Division of Motor Vehicle Licensing, Department of Vehicle Regulation for Low Speed Vehicles or Alternate Speed Vehicles from June 25, 2009 to present.
3. All Application for Kentucky Certificate of Title or Registration form TC 96-182 submitted to and denied by the Kentucky Department of Transportation Cabinet, Division of Motor Vehicle Licensing, Department of Vehicle Regulation for Low Speed Vehicles or Alternate Speed Vehicles from June 25, 2009 to present.
Appellant specified that any email messages provided to him should include "[a]ll correspondence both written and electronic from anyone not above-named sent as a response to any emails. ..(please include full email chains)."
On May 15, 2018, the Cabinet responded to the open records request. The Cabinet stated that it was providing Appellant with "e-mail records we have in response to your request." However, the Cabinet denied Appellant's requests for the TC 96-182 title applications. The Cabinet advised that the requests were denied because "these records would have to be created." The Cabinet stated that "[u]nder the open records law, agencies are not required to retrieve and compile data in response to open records requests" and cited 14-ORD-109 as support. The Cabinet stated that "[r]equests for information as opposed to existing records fall outside the scope of open records law and thus we are not obligated to provide this information."
On May 18, 2018, Appellant submitted an appeal of the Cabinet's response. Appellant attached copies of the approximately seventy-eight (78) documents the Cabinet provided in response to his request. Regarding the correspondence, Appellant stated that he had "credible information...that they did not include all records I requested." Appellant clarified the statement saying "I have confirmation from the Boone County Sheriffs [sic] Department that there were electronic communications between the [Cabinet] and their office in regards to the licensing and titling of low speed vehicles as it relates to the inspections of the Sheriffs [ sic ] Office performed." He also argued that the Cabinet had not provided him the full email chain for each record. Appellant noted that there are Cabinet employees copied on email exchanges, but the email messages of those employees are missing from the Cabinet's response.
Regarding the denial of the title applications, Appellant defended the burden his request would create by stating that "[i]t is my opinion that only asking for the Low Speed Vehicle and Alternate Speed Vehicle applications should decrease the amount of records significantly that I am requesting." He added that "[t]he number of those applications is a mere fraction of the total title applications submitted to the Transportation Cabinet and truly the only subset of applications I am interested in inspecting."
On May 25, Special Assistant J. Todd Shipp filed a response to the appeal on behalf of the Cabinet. Regarding the communications, Mr. Shipp stated that "[t]he Cabinet has provided all emails regarding this matter," and he enclosed copies of those communications with the response. Regarding the requests for title applications, Mr. Shipp argued that the no records exist from 2009 to 2014. He notes that the applicable record retention schedule for title applications is five (5) years, therefore no records exist from 2009 to 2014. Mr. Shipp cited Transportation Cabinet Records Retention Schedule , Series 03945: Title Application as the applicable retention schedule in a brief supplement.
Regarding the title applications from 2015 to present, Mr. Shipp argued that the Cabinet is not obligated to create records to satisfy a particular open records request. Mr. Shipp provides a helpful description of the process by which title applications are received and stored by the Cabinet, stating that:
In addition, no hard copies are received from the 120 county clerks. They are scanned from their offices daily and maintained only by Vehicle Identification Number (VIN) within the POD (Print On Demand) System. They are not stored by model, make, passenger, SUV, truck, low speed, or alternative speed. To identify a record would require the VIN for a specific record and a systematic review of each 11,680,000 record(s) to identify whether or not it might satisfy this request. We have no capacity to provide a systematic printout of all applications for alternative or low speed vehicles. That record does not exist.
Mr. Shipp argues that the request places an unreasonable burden on the Cabinet in producing the record. He points out that, since the records are stored by VIN number, "it would require the systematic printing of 12,000,000 records and an entire Division of employees (understaffed due to attrition and budget restraints) to go through each of these to determine if they satisfy his request." Additionally, Mr. Shipp argues that title applications are protected by the Driver Privacy Protection Act, and the law prohibits the release of personal information. Mr. Shipp provided this Office with a copy of Appellant's TC 96-182 title application for purposes of review for this appeal.
Regarding the Cabinet email communications disclosed to Appellant, we are unable to determine, from the record on appeal, that additional records exist. The Attorney General has consistently recognized that a public agency cannot provide a requester with access to nonexistent records or those that it does not possess. 07-ORD-190, p. 6; 06-ORD-040. A public agency cannot produce that which it does not have nor is the agency required to "prove a negative" in order to refute a claim that certain records exist in the absence of a prima facie showing by the requester. See Bowling v. Lexington-Fayette Urban Cnty. Gov't, 172 S.W.3d 333, 340-41 (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").
Appellant has not made the prima facie showing required to refute the Cabinet's claim that no additional communications exist. Appellant claimed that the Cabinet possesses additional communications from the Boone County Sheriff's Office, but there is no supporting evidence in the record. On June 12, 2018, Appellant supplemented his appeal with a reply to the Cabinet's response. Appellant repeated the assertion that he had "credible information verified" that the Cabinet was in possession of additional email communications. However, Appellant offered no additional evidence in support.
Appellant also argues that the Cabinet failed to provide original emails for the employees copied on the messages disclosed. The record does show that at least three (3) Cabinet employees were copied on the disclosed email messages. However, there is no evidence that those employees replied to the original messages. Even if the Cabinet had provided emails for the copied employees, those messages would be duplicates of the original message already disclosed.
Regarding the TC 96-182 title applications for 2009 to 2014, we find that the Cabinet did not violate the Open Records Act in withholding those records. The Cabinet stated that those records had been discarded pursuant to the applicable records retention schedule. The Transportation Cabinet Records Retention Schedule , Series 03945: Title Application is the applicable retention schedule. The schedule states:
This series documents the activities which result in the issuance of Certificates of Title (03946) to vehicles, motor homes, and trailers, as required in KRS 186A.010-990. Applications for titles are made to the County Clerk in the county of residence of the purchaser or in the county of purchase, within 15 days of purchase. Application information is entered by the Clerk into the Automated Vehicle Information System (AVIS). AVIS, implemented in September 1983, automates the registration and titling process. The application for title and any other supporting documentation is then forwarded to the Department for review and issuance of the title. All titles are to be issued within five days of receipt by the Department, unless discrepancies are noted.
The 2009-2014 TC 96-182 title applications at issue in this appeal fit the description of the records subject to Series 03945. The disposition instruction for the Series states, "[p]urge and/or destroy after five (5) years." The record shows that the Cabinet followed those instructions and destroyed the records accordingly. A public agency cannot produce that which it does not have. Bowling, 172 S.W.3d at 340-41. However, in order to satisfy the burden of proof imposed by KRS 61.880(2)(c) 1, public agencies must offer some explanation for the nonexistence of the records and the authority under which the records were destroyed. See Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011). Here, the Cabinet explained that it had destroyed the older title applications according to the retention schedule. This Office has generally found no violation of the Act when a public agency destroys records in the normal course of business per an applicable records retention schedule. 18-ORD-007; 17-ORD-087; 13-ORD-024; 09-ORD-195. Therefore, we find that the Cabinet did not violate the Act when it did not provide access to the 2009-2014 TC 96-182 title applications.
Regarding the TC 96-182 title applications for 2015 to present, we find there is clear and convincing evidence in the record to support the Cabinet's claim of an unreasonable burden. The Cabinet's appeal response shows that the title applications are received from the county clerks as scans. Those scans are maintained in a print on demand system, which stores the records by VIN number. The Cabinet asserts that it would be required to undertake a "systematic review of each 11,680,000 record(s) to identify whether or not it might satisfy" Appellant's particular request. The Cabinet notes that it "receives roughly eight thousand (8,000) applications per day" amounting to "roughly 3,000,000 per year[.]" Appellant specifically requested applications pertaining to "Low Speed Vehicles, Alternate Speed Vehicles, and/or Golf Carts." Because the system stores the records by VIN number, rather than by vehicle type, the Cabinet would be required to sift through the 11,680,000 records to ascertain which are responsive to this request.
In addition, the Cabinet is correct that the Driver's Privacy Protection Act (hereinafter as "the Act") exempts some information in the TC 96-182 title applications from disclosure. The Act prohibits the release of personal information or highly restricted personal information of an individual from state motor vehicle records. See 18 United States Code (U.S.C.) § 2721(a)(1)-(2). The Act defines "personal information" as that which "identifies an individual, including an individual's photograph, social security number, driver identification number, name, address (but not the 5--digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver's status." 18 U.S.C. § 2725(3). The title application submitted for review shows that applicants complete the form with names, social security numbers, driver identification numbers, addresses, and telephone numbers. Therefore, Cabinet employees would be required to redact protected identifying information from each responsive record to avoid violating federal law.
We agree that this undertaking would require an unduly burdensome dedication of staff and resources. A claim of an unreasonable burden is permitted under KRS 61.872(6), which provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
The Kentucky Supreme Court decision in Commonwealth v. Chestnut, 205 S.W.3d 655, 664 (Ky. 2008), determined that a public agency "faces a high proof threshold [in denying a request based on KRS 61.872(6)] since the agency must show the existence of the unreasonable burden by clear and convincing evidence. " The Court also found that an agency cannot rely on "inefficiency in its own internal record keeping system to thwart an otherwise proper open records request." Id. at 665. "The obvious fact that complying with an open records request will consume both time and manpower," the court concluded, "is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden. " Id.
In 14-ORD-109, we determined that a request for 6,200 emails was unreasonably burdensome for the Spencer County Board of Education due to the sheer volume of records, coupled with the mandatory nature of the privacy provisions of the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, et seq. and/or the Kentucky Family Education Rights and Privacy Act (KyFERPA), KRS 160.700, et seq. Similar to 14-ORD-109, the Cabinet is faced with reviewing up more than 11,000,000 documents. Upon locating responsive documents, the Cabinet would then face either redacting federally protected information from any responsive record, or requiring the Appellant to secure qualifying releases from the protected individuals. See 18 U.S.C. § 2721(d).
Chestnut, supra, was in part dismissive of the public agency's claim of an unreasonable burden because the Court found the agency's internal method of record keeping increased the burden of collecting and producing the responsive records. In the current instance, we have no evidence that the Cabinet's record keeping system is inefficient. To the contrary, the Cabinet is required to collect TC 96-182 title applications from each of the counties of the Commonwealth. The counties scan and send the documents in a manner which requires the Cabinet to locate the record by VIN number. We have no reason to doubt this method may be the most efficient and effective means of collecting and storing vehicle titles from every county.
A claim of unreasonable burden requires the weighing of the competing interests of public access to agency records and the agency's own interest "in effectively executing its public function." 00-ORD-72 (citing 96-ORD-155). Weighed against the public interest in having access to records specifically pertaining to "Low Speed Vehicles, Alternate Speed Vehicles, and/or Golf Carts" is the agency's interest in executing its public functions. In weighing these competing interests, it would be an unreasonable burden for the Cabinet to review and produce the records as requested by Appellant. Accordingly, we find that Cabinet sustained its burden of proof by clear and convincing evidence and showed that the request for title applications for a specific vehicle type was unreasonably burdensome.
A party aggrieved by this decision shall 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 proceeding.
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