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 Pikeville Independent School District ("District") violated the Open Records Act in denying Ashley Brown's October 19, 2018, e-mailed request for "every document or bit of information concerning the one million dollar life insurance policy or payment that is equivalent to a term policy premium towards a Whole Life Policy" for Superintendent Jerry T. Green, including "every bit of information on any and all changes to any and all contracts." 1 By e-mail dated October 24, 2018, Max K. Thompson, legal counsel for the District, responded on its behalf; he indicated that he was attaching "the documents maintained by the Board that are responsive" in PDF format, which included an email "from Denise Clark with all [i]nformation provided to OEA regarding superintendent salaries (redacted W-2s) including minutes [from the meetings] where contracts were approved," the Munis Report documenting the Monumental Insurance payment . . . ," and the "Investors Heritage Life Insurance Company policy" for Superintendent Green "(Group life policy)." He further stated that Superintendent Green received a "merit raise" as part of his 2010-2014 contract. Finally, he indicated that no additional responsive documents "have been provided. . . . Several questions were asked or directives given in your email" but no responsive documents exist in the possession or custody of the District. 2
The "nature and purpose of the document, not the place where it is kept," confirm that Superintendent Green's insurance policy can be properly characterized as a "public record" within the meaning of KRS 61.870(2). 00-ORD-207, p. 5. Although some portions of the policy might be protected under KRS 61.878(1)(a), 3 our ability to make a determination regarding the applicability of that statutory exception is hindered insofar as the District does not currently possess a copy of the policy nor, consequently, is the Attorney General able to review the policy in camera per KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. "Given the unusual facts presented, the [District] is necessarily unable to satisfy its burden of proof under KRS 61.880(2)(c), and this office is unable to conclusively determine whether some or all of the content is protected from disclosure, but does find that [its] denial based on lack of possession is contrary to existing legal authority. " 12-ORD-120, p. 2.
In her October 18, 2019, letter of appeal, Ms. Brown stated that "[p]ublic records confirm, and the District does not deny, that on or about August [19, 2008,] a check was generated and cleared on or about [September] 30, 2008 to purchase a $ 1 million whole life insurance policy for Superintendent Jerry Green by the District with taxpayer funds at a cost of $ 154,176.00." However, the minutes of public Board meetings "do not confirm that this purchase was approved by the Board or that the Board was apprised of the purchase." She further noted that Mr. Thompson did not "expressly state that the District does not possess a copy of the life insurance policy itself." Accordingly, she argued that Mr. Thompson's response on behalf of the Board was deficient "insofar as it did not admit or deny" possessing the requested policy as required under KRS 61.880(1). 4 Citing a line of prior decisions by this office, specifically 00-ORD-207 and its progeny, establishing that "lack of possession is not a sufficient basis for denying access" to it, she asserted the policy is a "public record" within the meaning of KRS 61.870(2). Thus, "even if the District failed to maintain a copy of the policy, it is obligated to retrieve and produce a copy of the policy" consistent with the reasoning of those decisions.
Upon receiving notification of Ms. Brown's appeal, Mr. Thompson notified this office, by letter dated October 28, 2019, that he would not be making any substantive arguments because he is legal counsel for the Pikeville Independent Board of Education, of which Ms. Brown is a member. He included a copy of the records provided to her and the subsequent correspondence between the parties for consideration as part of the record on appeal. 5 In supplemental correspondence dated November 4, 2019, Ms. Brown emphasized the District "does not deny the existence of the policy, only possession of a copy of the policy." She also noted, "[T]he District acknowledges possession, and produces a copy, of a second life insurance policy purchased for Superintendent Green on September 1, 2002 from Investors Heritage." Citing KRS 171.640, she alleged the District's inability to produce a copy of the requested policy "raises substantial records management and records access issues." 6
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 a claim that certain records exist in the absence of a prima facie showing by the complainant. See
Bowling v. Lexington-Fayette Urban Cty. Gov't, 172 S.W.3d 333, 341 (Ky. 2005); 11-ORD-037; 11-ORD-091. Compare
Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011); 11-ORD-074. However, in construing KRS 61.880(1), the Kentucky Court of Appeals held: "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). A "limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less [amount] to substantial compliance." Id. ; 01-ORD-183, pp. 2-3; 07-ORD-139; 11-ORD-158.
Thus, in addressing the obligations of a public agency denying access to public records based upon their nonexistence or its lack of possession, this office has consistently observed that a public agency's "inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms ." 01-ORD-38, p. 9 (internal citations omitted); 12-ORD-162. While it is obvious that a public agency "cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient. " 02-ORD-144, p. 3; OAG 90-26, p. 4; 09-ORD-145; 10-ORD-215. "Insofar as the [District] initially failed to state affirmatively that no [responsive policy] existed in the possession of the agency, its original response was deficient. " 19-ORD-150, p. 3. Mr. Thompson cured this deficiency on appeal in response to our inquiry. However, when viewed in light of existing legal authority, the undisputed facts presented here confirm that Superintendent Green's insurance provider holds the policy in dispute "at the instance of and as custodian [footnote omitted] on the [District's] behalf, and that [its implied] position that it cannot compel the [the provider] to disclose the [policy] is without merit." 7 00-ORD-207, p. 5; 17-ORD-246. The record on appeal presents no basis to depart from governing authority establishing that, ""'[i]n the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record. '" Id. (citations omitted); 12-ORD-120; 17-ORD-273.
Although the General Assembly has recognized "an essential relationship" between the intent of the Open Records Act and the intent of Kentucky Revised Statutes Chapter 171, relating to management of public records, at KRS 61.8715, the Act only applies to "public record [s]," a term which is expansively defined at KRS 61.870(2). 8 In other words, 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; 99-ORD-202; 04-ORD-205; 16-ORD-019. Compare 19-ORD-113. However, "[t]his is not to say that a public agency can somehow secret away public records on private premises, and thus avoid the requirements of the Open Records Act. " 99-ORD-202, p. 5 (emphasis added). "[L]ack of actual possession is not a sufficient basis for denying access to records" if the records being sought are being held "at the instance of and as custodian on the [public agency's] behalf[.]" 08-ORD-206, pp. 7, 13; 00-ORD-207.
In 00-ORD-207, this office held that the City of Sheperdsville violated the Open Records Act in denying access to a settlement agreement "disclosing the amount of money paid by the city's liability insurer in settlement of the lawsuit, on the basis that records of the insurance carrier, and the defense attorney hired by the carrier, cannot be 'opened by a demand upon the city.'" Id. , p. 1. The City argued that the requester could not "'impose upon the city a duty to direct its insurer [and its defense attorney] in the handling of the case" to produce a copy of the document requested, "inasmuch as the city lacks contractual authority to do so, and has no legal obligation to do so under the Open Records Act. " 9 Id. , p. 4. In rejecting this position, the Attorney General stated, "Numerous decisions of this office support the view that public records in the custody of a private agent are subject to public inspection unless properly excluded under one or more of the exceptions codified at KRS 61.878(1)[.]" Id. , p. 6. See 99-ORD-194 (water district improperly postponed access to a merger agreement because it was not in the district's possession, holding that possession by the agency's counsel did not relieve the agency of its duties under the Act); 95-ORD-114; 00-ORD-46; 00-ORD-207; 05-ORD-015; 05-ORD-157; 12-ORD-120; 17-ORD-273.
Since KRS 61.8715 was enacted in 1994 to address the duty of public agencies to maintain public records, "the Attorney General has applied a higher standard of review relative to denials based on the nonexistence, destruction, or loss of public records. " 95-ORD-96 (citing 94-ORD-141). In order to satisfy its burden of justifying a denial per KRS 61.880(2)(c), a public agency such as the District "must document what efforts were made to locate the missing records." Id. Thus, a public agency is required "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." 95-ORD-96 (quoting
Cerveny v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D. Col. 1978)). In particular, the agency "is required to make a reasonable search of persons who are likely to have responsive documents." 14-ORD-181, p. 10; cf . 14-ORD-123; 17-ORD-104. "Failure to contact employees who are likely to have responsive records is an inadequate search and a violation of the Act. . .." 17-ORD-273, p. 4.
If records otherwise fall within the definition of "public record" codified at KRS 61.870(2), "they are subject to the Open Records Act, regardless of where they are located or whose 'personal property' they are considered." 17-ORD-050, p. 3; 04-ORD-123. "Thus, records in the possession of [public] employees [can] meet the definition of a 'public record' for which the [agency] is accountable." 17-ORD-050. In fact, where an employee is the sole possessor of public records, the agency "is obligated to retrieve them from [the employee] to facilitate public access to the records." 11-ORD-105. Here, the District "failed to make any attempt to retrieve [the responsive policy] from [Superintendent Green], the employee most likely to possess them." 17-ORD-273, p. 4. The District also failed to contact his insurance provider in order to request a copy of the policy. "A third party authorized to possess a public agency's records 'holds [them] at the instance of and as custodian on the [agency's] behalf, and . . . the [agency's implied] position that it has no control over these records is without merit.'" 16-ORD-017 (quoting 04-ORD-123); 17-ORD-273. Accordingly, the District "subverted the intent of the Act within the meaning of KRS 61.880(4) by failing to establish an effective system for management and retention of its records." 14-ORD-100; 15-ORD-011; 17-ORD-273. Consistent with KRS 61.8715, this office refers the matter to the Kentucky Department for Libraries and Archives for additional inquiry as that agency deems appropriate. See 17-ORD-273.
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 proceedings.
Footnotes
Footnotes
1 Ms. Brown advised that she had spoken with a representative of Transamerica Life [I]nsurance [C]ompany," which now owns Monumental Life Insurance Policies. After explaining that she was a new Board member and inquiring as to what steps were necessary to view a policy the Board had purchased, she was told Superintendent Green "could write a letter of inquiry asking the life insurance company to disclose any and all information concerning the life insurance policy/policies." She had already made a verbal request for the Superintendent to ask for a copy from the insurance provider and she characterized her October 19, 2018, e-mail as her official written request.
2 The District was not required, under the Act, to answer the related questions that Ms. Brown asked. "The 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; 04-ORD-144; 17-ORD-015. 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; 11-ORD-026. Likewise, "a public agency is not obligated to compile a list or create a record to satisfy an open records request." 02-ORD-165, p. 4 (citation omitted). See 93-ORD-50; 11-ORD-026; 13-ORD-134; 13-ORD-202.
3 Even assuming that KRS 61.878(1)(a) could be properly invoked as the statutory basis for withholding any identifying or health information, redaction of such information is required under KRS 61.878(4), as opposed to withholding the policy in its entirety.
4 By e-mail dated October 29, 2019, this office asked Mr. Thompson to confirm that Ms. Brown did not receive a copy of the requested policy and, if not, to confirm or deny whether the District possesses a copy of the policy. Without further elaboration, he confirmed that the District "does not have a copy of the requested policy."
5 Included among the records that Mr. Thompson attached to his response was a copy of his letter to Superintendent Green dated September 12, 2008, which stated, in relevant part, "The Board also agreed to pay for a One Million Dollar Term Life Insurance Policy or pay the equivalent of a term policy premium towards a Whole Life Policy."
6 In further support of her position, she cited Records Series L5343 of the Public School District Records Retention Schedule , promulgated into regulation at 725 KAR 1:061, which governs the retention and disposition of the Master Personnel File of all District employees, and includes, among other items, "insurance records[.]" Series L5343 is facially applicable to any existing responsive policy. However, "the applicable retention periods and disposition instructions only govern existing records matching the descriptions provided." 16-ORD-224, p. 2 n. 2; 10-ORD-187. The District has not denied the existence of the policy; instead, the District relied solely upon its lack of actual possession as the basis for denial. Pursuant to Retention and Disposition instructions for this Records Series, the records documenting "Health/life insurance membership" must not be destroyed until five (5) years after termination of employment.
7 For purposes of the Open Records Act, "custodian" is defined as "the official custodian or any authorized person having personal custody or control of the records[.]" KRS 61.870(6).
8 KRS 61.870(2) defines "public record" as "all books, papers, maps, photographs, cards, types, discs, diskettes, recordings, software or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency."
9 The District has not made any such argument here and the reasoning of 00-ORD-207, if anything, is consequently more persuasive.