19-ORD-232
December 23, 2019
In re: Gay Adelmann/Education Professional Standards Board
Summary:
The
Education
Professional
Standards
Board
(“EPSB”) did not violate the Open Records Act (“the Act”) in
denying a request for a copy of an audio recording of a public
hearing that was not a “public record” under KRS 61.870(2) because
it was not “prepared, owned, used, in the possession of or retained
by” the agency. Rather, a court reporter made the recording at her
own initiative and expense to assist in preparing a written
transcript of the hearing. She did not maintain the recording at the
instance of EPSB or its custodian. EPSB’s initial response
procedurally
violated
KRS
61.880(1)
for
failing
to
state,
unequivocally, that no recording existed in the possession or
control of the agency, but EPSB cured this deficiency.
Open Records Decision
The question presented is whether EPSB violated the Act in denying the
November 13, 2019, request made by Gay Adelmann (“Appellant”) for “a copy
of the audio recording of the EPSB hearing … on 11/12/19.” Based upon the
following, this Office finds EPSB’s initial response procedurally deficient.
Ultimately, EPSB cured that deficiency with a subsequent and timely response,
though it is unclear if EPSB would have cured this deficiency but for Appellant’s
continued correspondence. The Attorney General highlights this point to remind
agencies that the burden should not be on the requester to make agencies complywith the Act. Nevertheless, the Attorney General finds EPSB met its obligations
under the Act within the requisite three business days.
Appellant directed her request to Deanna Durrett, General Counsel and
Official Records Custodian, Kentucky Department of Education (“KDE”), who
received it on November 14, 2019. KDE Deputy General Counsel Chelsea F.
Young responded that day, stating “KDE does not have the requested record at
this time.” Upon receiving EPSB’s response, Appellant directed supplemental
correspondence to EPSB later that day, and asserted that EPSB’s original
response “is deficient insofar as it fails to confirm or deny the existence of the
requested recording and how and when I can obtain a copy.” She referenced
Records Series 06822 of the State Agency Records Retention Schedule-EPSB in
support of her argument and reminded EPSB of its obligation to conduct a
reasonable search and to produce the requested recording, or provide a specific
statutory exemption for why EPSB would not produce it.
On November 15, 2019, the day after receiving Appellant’s request, Ms.
Durrett unequivocally reiterated the basis for EPSB’s denial – it lacked
possession. Citing KRS 61.870(2), she asserted that a public agency cannot
provide a requester with access “to a record that it does not have or that does not
exist. Thus, the agency has discharged its duty under the Open Records Act by
affirmatively so stating within three business days.” She also noted that a
transcript would be completed by December 31, 2019. Finally, she clarified that
“EPSB’s records retention schedule is not applicable to a record that is not yet
maintained by the agency.” This appeal followed.
On appeal, the Appellant did not dispute the timeliness of EPSB’s
response. However, she disputed EPSB’s position that it has no statutory
obligation to produce a copy of the recording or set forth a statutory basis for
denial. Appellant also stated that EPSB mischaracterized Appellant’s
correspondence seeking clarification of EPSB’s response as a “request for
information” because KRS 61.872(5) contemplates exactly that – a detailed
explanation of the cause for delaying production of the audio recording of the
public hearing. She further emphasized that she did not request a copy of the
hearing transcript; she requested a copy of the recording. Quoting KRS 61.870(2),
she maintained that, at a minimum, ESPB “used” the audio recording of the
public hearing and, barring any relevant statutory exception, it must be disclosedregardless of whether EPSB currently has “actual personal custody or control” of
the recording. KRS 61.870(5).
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 stating unequivocally that certain records do
not exist, following a reasonable search, and explaining why, if appropriate. 04-
ORD-205, p. 4; 98-ORD-154; 09-ORD-145; 12-ORD-065. Because EPSB initially
equivocated and stated that it lacked possession of the recording “at this time,”
and provided no statutory or legal basis for further delay, its initial response was
deficient. 19-ORD-150, p. 3. EPSB ultimately cured this deficiency after
continued correspondence with Appellant. Moreover, existing legal authority
validates EPSB’s final denial of the request.
At issue is whether the public agency prepared, owned, used, possessed,
or retained the record sought and, if so, whether the records are open to public
inspection. 99-ORD-202, p. 2; 09-ORD-073. In other words, the Act only applies
to records that are in existence and in the possession or control of a public
agency. 99-ORD-202, p. 5; 16-ORD-224. “It does not impose an obligation on
agencies to create, procure, or retrieve a record to accommodate a request. 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.” Id.
(emphasis added)1 Here, the parties do not dispute the existence of a recording.
They dispute whether the recording is subject to public inspection.
If EPSB had acquired the recording during the normal course of business
and it currently possessed a copy, or if the court reporter had recorded the
hearing at EPSB’s direction and was compensated for this purpose with public
1 This Office has consistently recognized that “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(settlement agreement in physical
custody of insurance carrier); 04-ORD-123; 05-ORD-015; 06-ORD-147; 08-ORD-206. “In 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.” 04-ORD-123 (quoting City of Louisville v. Brian Cullinan, Nos. 1998-CA-001237-MR and 1998-
CA-001305-MR (Ky. App. 1999)) (unpublished). This Office’s holding today does not depart from this
line of authority; rather, the instant case is distinguishable as the requestor did not seek records of a “public
agency,” nor did the private court reporter hold the recording “at the instance of and as custodian on
[EPSB’s] behalf.” See 96-ORD-41; 98-ORD-90; 09-ORD-073; 16-ORD-224.funds, that recording would be “accessible as [a] non-exempt public record[.]”
99-ORD-202, p. 2; 18-ORD-236. However, the Attorney General is “not
empowered to declare, in the context of an open records appeal, that [EPSB’s]
failure to require that the records be submitted to it, and managed and
maintained as public records, constitutes a violation of the Open Records Act.”
Id. See 06-ORD-201; 12-ORD-098; 15-ORD-190; 18-ORD-236.
In responding to this appeal, EPSB elaborated upon its position. EPSB
clarified that, “[a]s is EPSB’s practice,” it hired a private court reporter to prepare
a written transcript of the November 12, 2019, public hearing. The court
reporter, who is not a “public agency” under KRS 61.870(1), recorded the hearing
for use in producing the written transcript. “Because the court reporter ‘records’
the hearing and uses the audio recording to create an accurate transcript, the
recording is the court reporter’s property and is not a record within the EPSB’s
possession at any time. The court reporter then submits an official transcript to
EPSB.”
In this case, a court reporter, on her own initiative, opted to make an
audio recording of the hearing to assist her in preparing the written transcript for
which EPSB will compensate her. See 06-ORD-195 (private individual generated
the recordings in dispute “at his own initiative” and expense, and the agency
never owned, used, possessed, or retained, the recordings). The audio recording
created by a private individual to assist in her creation of the requested transcript
is not a public record subject to disclosure.
Under the circumstances presented, EPSB did not violate the Act in
denying Appellant’s request for a copy of the recording. It was not prepared at
the direction of EPSB nor is the court reporter holding the recording “at the
instance of and as custodian on [the agency’s] behalf.” See 99-ORD-202; 06-ORD-
201. However, this Office reminds EPSB, and all public agencies, that it is the
duty of an agency subject to the Act to sufficiently justify its denial of records at
the outset of the request, and the burden is not on the requester to remind an
agency of that obligation. See KRS 61.880(1); 61.880(2)(c).
Either party may appeal this decision 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.Daniel Cameron
Attorney General
Michelle D. Harrison
Assistant Attorney General
#458
Distributed to:
Gay Adelmann
Chelsea F. Young