Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Kentucky State Police ("KSP") violated the Open Records Act in its disposition of Heather Childress' request for the personnel file of a former KSP employee and information regarding that former employee. For the reasons stated below, we find that KSP committed a procedural violation of the Act in withholding the potential release of records by one month in order to allow a former employee an opportunity to object to the release of records relating to him, but did not substantively violate the Act in denying a request for records that did not exist, or in refusing to honor a request for information.
On September 11, 2018, Heather Childress ("Appellant") faxed an open records request to KSP's custodian of records, requesting "any information, documents, records pertaining to Jeffrey Wayne Wilson, KSP retired unit 409 personnel file. Please include any disciplinary action, hire and separation date, and evaluations for his tenure as an employee of Kentucky State Police." On September 14, 2018, Stephanie Dawson, Official Custodian of Records, responded to the request, stating:
Please be advised that, in light of Hill v. Kentucky Lottery Corp,. 327 S.W.3d 412 (Ky. 2010), the employee whose records are sought is being notified of the request for their records as allowed by Beckham v. Board of Education, 873 S.W.2d 575 (Ky. 1994); to provide them the opportunity to object to release of any of their personnel or disciplinary records. Therefore, the records you requested are not immediately available. Should the employee not raise any objection to the release of these documents, the records will be released to you by October 14, 2018.
Appellant filed her appeal on September 20, 2018.
On appeal, Cody Weber, staff attorney, KSP, stated that after conferring with KSP Human Resources, KSP determined that it did not possess any responsive records as Mr. Wilson was no longer employed by KSP. KSP attached several retention schedules with its response: the "General Schedule for State Agencies," the "General Schedule for Electronic and Related Records," and the "Records Retention Schedule for the Department of State Police." KSP also stated there were no responsive records pertaining to disciplinary action and cited decisions of this office holding that a public agency is not required to provide nonexistent records. Finally, KSP responded to the portion of the request for hire and separation dates by stating that the Open Records Act does not require an agency to honor a request for information.
On October 10, 2018, pursuant to KRS 61.880(2)(c), this office requested that KSP further explain how the retention schedules it provided relate to the requested records and to its denial of those records. We also requested that KSP state when Mr. Wilson separated from KSP. KSP responded to these requests by letter dated October 23, 2018.
KSP's response stated that Mr. Wilson is a retired Chapter 16 KSP Trooper, last employed by KSP on December 31, 2006. The applicable record series, and retention periods, within the Records Retention Schedule for the Department of State Police were identified as:
00072: Kentucky State Police Sworn Personnel Profile Folder. Retention and Disposition: Retain in Agency and destroy after termination of employment in the agency.
03460: Kentucky State Police Officer- Agency Personnel File (Departmental Copy). Retention and Disposition: Retain in Agency. Purge disciplinary documentation, except for any action that is classified as Class A, after five (5) years. Destroy remainder of file ten (10) years after employee is separated from the agency.
06505: Chapter 16 Personnel Promotional Testing File. Retention and Disposition: Retain in Agency five (5) years, then destroy.
00102: Chapter 16 Sworn Personnel Complaint Investigation File. Retention and Disposition: Retain in Agency. Purge and destroy Class B and C actions after five (5) years. Destroy reminder of file ten (10) years after separation or termination of employment.
03461: Kentucky State Police Officer Post Personnel File. Retention and Disposition: Retain in Agency and destroy five (5) years after termination of employment.
Delay to Allow Former Employee to Object . KSP's initial response to Appellant's request stated that the requested records were not immediately available because KSP was allowing the former employee the opportunity to object to release of personnel or disciplinary records. KSP stated that the records would be released by October 14, 2018, one month after KSP's response to the request. KSP cited to
Beckham v. Bd., of Educ. of Jefferson Cty., 873 S.W.2d 575 (Ky. 1994) for the proposition that public employees may have a right to contest, in court, the release of records in which they possess a privacy interest.
In
Beckham, and Lexington-Fayette Urban Cty. Gov't v. Lexington Herald-Leader Co., 941 S.W.2d 469 (Ky. 1997), the Court recognized that individuals whose privacy interests are implicated by an open records request have standing to file suit to prevent disclosure of records under KRS 61.878(1)(a), which protects "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " The cases cited immediately above impose no requirement upon a public agency to notify a person whose privacy interests are affected. If an affected individual such as Mr. Wilson is so notified, however, the burden is upon him to "take such further action as he deems appropriate." Lexington-Fayette Urban Cty. Gov't, 941 S.W.2d, at 473. "The procedural requirements of the Open Records Act are not indefinitely suspended while Mr. [Wilson] weighs his options." 98-ORD-24.
As we observed in 07-ORD-230, "[t]he fact that [the former employee] was advised of the request and was given an opportunity ? to assert an exemption from disclosure, did not relieve [KSP] of its obligations under the Open Records Act. " In 98-ORD-24 the Attorney General held that "[t]he procedural requirements of the Open Records Act are not indefinitely suspended while [the person affected by disclosure] weighs his options." 98-ORD-24, p. 4; see also 02-ORD-214, 08-ORD-023. We find no basis in the Act for KSP's claim to a one-month delay in the release of records 1 in order to allow a former employee an opportunity to object to the release of records pertaining to that former employee.
Expiration of Records Retention Schedules . Pursuant to KRS 171.420, the State Libraries, Archives and Records Commission is authorized to "review and approve schedules for retention and destruction of records submitted by state and local agencies." The longest retention period for the applicable records series regarding Appellant's request is ten (10) years. As Mr. Wilson left employment with KSP over eleven (11) years prior to the open records request, all of the applicable retention periods expired and KSP destroyed the responsive records in the normal course of business.
We find no violation of the Open Records Act because KSP properly destroyed the records pursuant to the records retention schedules. 13-ORD-024. 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. In this case, KSP has provided a credible basis for the nonexistence of the requested records and we therefore find no violation of the Act.
Request for Information . Appellant requested the hire and separation date of the former KSP employee, and KSP declined to provide that information. Requests for information are outside the scope of the Open Records Act, and an agency is not obligated to honor a request for information. 02-ORD-88; KRS 61.870, et seq. The Kentucky Open Records Act addresses requests for records, not requests for information. 03-ORD-028. In 95-ORD-131, the Attorney General observed:
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request.
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, KSP's response, declining to provide the dates of hire and separation of the former employee, did not violate the Open Records Act.
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 proceeding.
Footnotes
Footnotes
1 As explained later in this decision, the requested records were destroyed in the normal course of business due to the expiration of applicable retention schedules. However, KSP's initial response was in error as it presumed the existence of responsive records and further exacerbated that error by informing Appellant that there would be a one-month delay in providing the records.