TO BE PUBLISHED
February 23, 1993
IN RE: Robert H. Flashman/University of Kentucky
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the University of Kentucky's denial of Dr. Robert H. Flashman's October 5, 1992, request to inspect a record in the University's custody. That record is identified as the file generated by the University's Affirmative Action Office in the course of investigating a formal complaint filed by Dr. Flashman, including notes, correspondence, and the final report prepared by the Office relative to the complaint. Dr. Flashman is a University employee, and his request was made under the Open Records Act.
On behalf of the University, Mr. Donald B. Clapp, Vice President for Administration and Official Custodian of Records, denied Dr. Flashman's request on October 8, 1992. Relying on KRS 61.878(1)(h), he maintained that the file of the Affirmative Action Office relating to Dr. Flashman's complaint "contains no formal documents and only contains some handwritten notes of Ms. Nancy Ray which appear to have been derived primarily from interviews with [Dr. Flashman]." Ms. Ray is an affirmative action officer at the University who apparently investigated his complaint. In addition, Mr. Clapp indicated that there was no final report.
In his letter of appeal to this Office, Dr. Flashman argues that the University's response is procedurally deficient. He notes that Mr. Clapp failed to explain how KRS 61.878(1)(h) applies to the records withheld, in violation of KRS 61.880(1). Moreover, it is his position that KRS 61.878(3) mandates release of the records even if they are preliminary in character. That provision requires disclosure of records relating to a public agency employee upon that employee's request, the exceptions to the Open Records Act notwithstand- ing. Since the disputed records were generated by Ms. Ray in
interviews with Dr. Flashman, he argues that those records relate to him and must be disclosed to him. With reference to particular documents which he submitted to the Affirmative Action Office, and which he believes to be in the file, Dr. Flashman maintains that the University is subverting the Open Records Act short of denial by failing to make the necessary inquiries in order to locate those documents.
We are asked to determine if the University of Kentucky properly denied Dr. Flashman's request for the file generated by its Affirmative Action Office in the course of investigating his complaint. For the reasons set forth below, we conclude that the University erred in denying that portion of Dr. Flashman's request relating to handwritten notes. However, Mr. Clapp properly advised him that the file contains no "formal documents" or "final report" which satisfy the remainder of his request.
KRS 61.878(3) was amended by the 1992 General Assembly, and now provides:
No exemption in this section shall be construed to deny, abridge or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documenta- tion that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disci- plinary actions, examination scores and preliminary and other supporting documenta- tion. A public agency employee, including university employees, applicant or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administra- tive investigations by an agency.
This provision formerly referenced only "state employee[s]," and had been interpreted by this Office as being applicable to state personnel governed by Chapter 18A of the Kentucky Revised Statutes only. OAG 87-50; OAG 90-83; OAG 91-128; OAG 91-133. It now extends, by its express terms, to all "public agency employees[s], including university employees." We therefore
conclude that KRS 61.878(3) overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) - (i),1 with the exception of those noted in the concluding sentence of the provision,2 when an open records request is submitted by a public agency employee or university employee. To the extent that the cited opinions are inconsistent with this holding, they are hereby modified to reflect the change in the law.
Mr. Clapp argues that the handwritten notes taken by Ms. Nancy Ray in interviews with Dr. Flashman are exempt from inspection pursuant to KRS 61.878(1)(h), relating to preliminary drafts and notes. As we have observed, KRS 61.878(3) now provides that virtually none of the exemptions codified at KRS 61.878(1)(a) - (i) may be construed to impede the right of a university employee to review and copy any record, including a preliminary record, which relates to him. The disputed records were, by Mr. Clapp's own admission, prepared by Ms. Ray in the course of an interview with Dr. Flashman, and relate to his complaint filed with the Affirmative Action Office. There can be little doubt that those records fall squarely within the parameters of KRS 61.878(3), the "exception to the exceptions." The University is directed to promptly release those records to Dr. Flashman.
Nevertheless, we find that the University's actions relative to the remainder of Dr. Flashman's request were consistent with the Open Records Act. Mr. Clapp advised him that the file contains no formal documents and that no final report exists.
This Office has consistently recognized that a public agency cannot afford a requester access to records which it does not have, or which do not exist. OAG 83-111; OAG 86-35; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203; OAG 91-220; OAG 92-25. A request for such documents is moot, and obviously cannot be honored. We have also recognized that the Attorney General is not empowered to investigate in order to locate documents which the requesting party maintains exist, but which
1KRS 61.878(1)(j) and (k) authorize nondisclosure of records made confidential by federal or state law and are not overridden by KRS 61.878(3).
2The final sentence authorizes an agency to withhold examinations and documents relating to ongoing criminal or administrative investigations even when they are requested by the public agency employee and relate to him.
the public agency states do not exist or are not in its posses- sion. As we observed in OAG 86-35, at p. 5:
This Office is a reviewer of the course of action taken by the public agency and not a finder of documents or possible documents for the party seeking to inspect such documents.
We believe this opinion is dispositive of the second issue raised in this appeal.
KRS 61.991(2)(a) establishes a penalty for public officials who willfully conceal or destroy public records with the intent to violate the provisions of the Open Records Act. There is no proof, in the instant appeal, that the disputed documents were concealed or destroyed. Such evidence, if it exists, should be presented to the local prosecutor, who may proceed to a determination of this matter. The Attorney General is not, however, authorized to render a decision on this question in an open records appeal.
Dr. Flashman and the University of Kentucky may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. Donald B. Clapp
Vice President for Administration
Office of the President
104 Administration Building
University of Kentucky
Lexington, Kentucky 40506-0032
Dr. Robert H. Flashman
3220 Blenheim Way
Lexington, Kentucky 40503