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 Education and Workforce Development Cabinet ("Cabinet") violated the Open Records Act in the disposition of Robert C. Moore's September 23, 2019, request for the following:
1) Records, including electronic mail and texts, reflecting or containing communications between personnel with the Kentucky Transportation Cabinet ["Transportation"] and personnel with the [Cabinet] and/or the Kentucky Office of Vocational Rehabilitation ["OVR"] concerning or relating to the testimony provided by Ms. Brenda Eadens in the administrative action involving Transportation and Ms. Cindy Seip and/or the evaluation of Cindy Seip's ability to drive a motor vehicle performed by Ms. Brenda Eadens;
2) Records, including electronic mail and texts, reflecting or containing communications from Matt Henderson, the Commissioner for the Department of Vehicle Registration of Transportation, made to personnel with the Cabinet, including but not limited to communications forwarded by Mr. Henderson to Cora McNabb, the Executive Director of the [OVR], concerning or relating to the testimony provided by Ms. Brenda Eadens in the administrative action involving the [Transportation] and Ms. Cindy Seip and/or the evaluation of Cindy Seip's ability to drive a motor vehicle performed by Ms. Brenda Eadens, and the records reflecting or containing the response to these communications; and,
3) Records, including electronic mail and texts, reflecting, scheduling or concerning a meeting or meetings held between personnel with [Transportation] and personnel with the Cabinet and/or the [OVR] concerning or relating to the evaluation of Cindy Seip's ability to drive a motor vehicle performed by Ms. Brenda Eadens, and/or the testimony provided by Ms. Brenda Eadens in the administration action involving [Transportation] and Ms. Cindy Seip.
Based upon the following, this office finds the Cabinet did not violate the Open Records Act in ultimately denying the request based upon the nonexistence of any responsive documents; the Cabinet is not required to "prove a negative" to refute an unsubstantiated claim that such records were created. However, the initial response by the Cabinet was untimely and otherwise deficient under KRS 61.880(1). See 18-ORD-164.
By letter directed to Mr. Moore on October 2, 2019, Staff Attorney Linda M. Keeton responded on behalf of the Cabinet. With regard to Items 1 and 2 of his request, she invoked KRS 61.878(1)(j), pursuant to which "[p]reliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended" are protected from disclosure. "Regarding emails by agency attorneys," the Cabinet denied access pursuant to KRE 503, incorporated into the Act by KRS 61.878(1)(l), and stated generally that "documents which constitute the work product of any attorney and come within the attorney-client relationship may be excluded from public inspection." With regard to "specific mention of documents forwarded to Cora McNabb," Ms. Keeton stated that, "A reasonable search was made for those requested records and none were located." She further indicated that a "reasonable search" was made for the records described at Item 3 of the request "and none exist." Nevertheless, the Cabinet noted that a public agency is not statutorily obligated to compile a list or create a record to satisfy a request made under the Act.
Mr. Moore initiated this appeal by letter dated November 15, 2019, challenging in detail the Cabinet's reliance on both KRS 61.878(1)(j) and 61.878(1)(l), incorporating the attorney-client privilege, codified at KRE 503. 1 Upon receiving notification of his appeal, however, Ms. Keeton supplemented the Cabinet's initial response. Having summarized the Cabinet's original substantive position, she noted that no "records of conversations between Cora McNabb and Matthew Henderson regarding Ms. Siep or Ms. Eadens" exist. According to Ms. Keeton, "Commissioner Henderson's concerns regarding Ms. Eaden's appearance at the hearing without the presence of EWDC counsel were expressed in a telephone call. There are no records in the Cabinet capable of being reproduced." In light of this fact, she reiterated that a public agency cannot provide nonexistent records nor is a public agency required to compile a list or create a record under the Act. She maintained the Cabinet has discharged its duty because it "has affirmatively stated to Mr. Moore that no records exist[.]"
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. In other words, the Act only applies to records which are in existence, and in the possession or control of a public agency. 99-ORD-202, p. 5; 16-ORD-019. "It does not impose an obligation on agencies to create, procure, or retrieve a record to accommodate a request." Id. 2
Accordingly, the Attorney General has consistently recognized that a public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. 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 Cty. 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-091; 12-ORD-087. Although the intent of the Open Records Act has been statutorily linked to the intent of KRS Chapter 171, pertaining to management of public records, at KRS 61.8715, the Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). See 19-ORD-188.
However, in order to satisfy the burden of justifying its denial per KRS 61.880(2)(c), a public agency must offer a written explanation for the nonexistence of the records if appropriate. 3 See
Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011); 04-ORD-075; 12-ORD-195; 19-ORD-188. On appeal, Cabinet provided a credible written explanation for the nonexistence of the records in dispute and the record on appeal is devoid of any evidence to refute its explanation. Compare 11-ORD-074 (holding that "existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable" and the agency failed to rebut the presumption). When, as in this case, a public agency denies that certain records exist, and the record on appeal contains no evidence to refute that contention, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 14-ORD-077; 19-ORD-188. The Cabinet did not violate the Open Records Act in denying Mr. Moore's request for the records in dispute as the Cabinet apparently never created those records and it cannot provide that which it does not possess. See 16-ORD-076; 18-ORD-158; 19-ORD-188.
However, in construing KRS 61.880(1), the 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). As the court recognized, 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; 19-ORD-113. 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. Accordingly, this office has consistently recognized that a response by a public agency violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," but a public agency discharges its duty under the Act in affirmatively so indicating. 98-ORD-154, p. 2 (citation omitted); 03-ORD-205, p. 3; 04-ORD-205, p. 4; 09-ORD-145; 18-ORD-156.
"[The Cabinet] cannot produce for inspection . . . [records] that never existed, but it [was] incumbent on the [agency] to retrieve all responsive records and review those records before issuing a denial." 12-ORD-013, p. 2; 15-ORD-109; 17-ORD-204; 19-ORD-113. On those occasions when the records do not exist, its denial of the request "should be premised on the records' nonexistence and not an exception that has no application." 16-ORD-258, p. 4; 15-ORD-151. Insofar as the Cabinet initially failed to state unequivocally that no responsive documents existed in the possession or control of the agency, its original response was deficient. The Cabinet did not allege that it was unable to conduct a search based on the criteria provided or ask Mr. Moore to clarify his request. Instead, the Cabinet assumed that some documents existed, but were exempt under KRS 61.878(1)(j) and/or the attorney-client privilege. See 09-ORD-145; 16-ORD-104; 17-ORD-204; 18-ORD-175; 19-ORD-113; 19-ORD-205. The agency was unable to discharge this duty because it apparently failed to conduct a reasonable search to locate any such documents prior to denying the request. See 13-ORD-205; 14-ORD-045; 15-ORD-178; 16-ORD-255; 19-ORD-113. Compare 15-ORD-167. The Cabinet's October 2, 2019, response to Mr. Moore's September 23, 2019, request, which it received on September 23, 2019, was also untimely. The Cabinet was required to issue a written response within three working days, or September 26, 2019, per KRS 61.880(1). The Cabinet did not provide any explanation for this delay either initially or in responding to Mr. Moore's appeal.
However, the Cabinet ultimately discharged its duty in conducting a reasonable search, notifying Mr. Moore that no responsive documents existed, and providing a credible explanation for the nonexistence of such documents. See 16-ORD-258; 17-ORD-204; 18-ORD-175. Accordingly, this office affirms the agency's ultimate disposition of Mr. Moore's request. See 19-ORD-113.
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 Mr. Moore provided additional context, as did Ms. Keeton on appeal. However, none of the information provided alters the relevant legal analysis.
2 This 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. Rather, "lack 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; See 00-ORD-207; 04-ORD-123; 05-ORD-015; 06-ORD-147; 08-ORD-206.
3 A public agency is required to make "'a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested[.]'" 95-ORD-96, p. 4 (citation omitted); 18-ORD-164. Further, a public agency must specify the steps taken to identify and locate any such records per the standard of 95-ORD-96 in order to fully discharge its duty. See 08-ORD-206; 10-ORD-222; 11-ORD-041; 12-ORD-087. "In assessing the adequacy of an agency's search we 'need not go further to test the expertise of the agency, or to question its veracity, when nothing appears to raise the issue of good faith.'" 95-ORD-96, p. 7 (citing Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977)). The Cabinet appears to have ultimately conducted a reasonable search and our decision affirming its denial is premised on this assumption. "Absent proof that [the Cabinet] failed to use methods which could reasonably be expected to produce the records requested," this office has no basis upon which to question its good faith. 12-ORD-153, p. 4; 18-ORD-164; 19-ORD-113.