NOT TO BE PUBLISHED
March 2, 1993
IN RE: Jerri Cockrel/University of Kentucky
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the University of Kentucky's denial of Ms. Jerri Cockrel's requests to inspect certain records in the University's custody. In her first request, which was submitted on November 11, 1992, Ms. Cockrel sought access to the complaint she filed with the University's Affirmative Action Office. In her second request, dated November 16, she asked to inspect the entire file generated by the Affirmative Action Office in the course of its investigation into her complaint. Ms. Cockrel is a University employee, and her request was made under the Kentucky Open Records Law.
On behalf of the University, Dr. Donald B. Clapp, Vice President for Administration and Official Custodian of Records, responded to Ms. Cockrel's request. In response to her request for the complaint filed with the Affirmative Action Office, he advised Ms. Cockrel that "the record as described does not exist." In response to her request for the "entire file" generated by the Affirmative Action Office in its investigation of her complaint, he indicated that the contents of the file would be released to her, "with the exception of Ms. Nancy Ray's handwritten notes which are exempt from disclosure pursuant to KRS 61.878(1)(h)." Ms. Ray is an affirmative action officer at the University who apparently investigated Ms. Cockrel's complaint.
In her letter of appeal to this Office, Ms. Cockrel argues that the University has improperly invoked KRS 61.878(1)(h) in support of its decision to withhold Ms. Ray's handwritten notes. She asserts 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 Law notwithstanding. It is her position that Dr. Clapp acknowledged that the records relate to her in his November 19, 1992, letter, and that therefore they must be disclosed.
Ms. Cockrel also argues that the University's recordkeeping system frustrates access to public records short of denial. She believes that the University may maintain more than one file on a given complaint "so as to only provide part of the records when a requestor asks for what would normally be expected to be 'the' file on 'a' complaint." Ms. Cockrel identifies several documents which would normally be found in a complaint file, but to which she was not afforded access. She expresses the view that this "contrived filing nomenclature" is designed to frustrate open records requests for documents pertaining to discrimination complaints.
We are asked to determine if the University of Kentucky properly denied Ms. Cockrel's request for the handwritten notes prepared by Ms. Ray in the course of investigating her complaint. For the reasons set forth below, we conclude that the University erred in denying that portion of her request. However, Dr. Clapp's actions relative to the release of the rest of the file were consistent with the Open Records Law.
In 93-ORD-19, this Office declared that the University of Kentucky improperly withheld handwritten notes prepared by an affirmative action officer during her investigation of a complaint. There, as here, the requestor had initiated the complaint, and the records related to him. KRS 61.878(3) therefore mandated release of the records. We believe that that decision, a copy of which is attached, is dispositive of the present appeal. The University is directed to promptly release Ms. Ray's handwritten notes to Ms. Cockrel.
As in 93-ORD-19, we find that the University's actions with respect to the rest of Ms Cockrel's request were consistent with the Open Records Law. In response to her request for a copy of her complaint, Dr. Clapp advised Ms. Cockrel that "the record as described does not exist." In 93-ORD-19, we recognized that a public agency can not afford a requestor access to records which it does not have, or which do not exist. See 93-ORD-19, at p. 3. We find that this decision is controlling as it relates to Ms. Cockrel's request for the complaint she filed with the Affirmative Action Office. The University cannot provide access to a nonexistent record. However, if the file contains an initiating document
which, although not styled a "complaint," serves the same function, we believe the University is obligated to release it under the reasoning of City of Louisville v. The Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983). Based on our review of Dr. Clapp's November 19, 1992, response, we conclude that the University properly released all remaining documents in the file.
Ms. Cockrel maintains that the University's recordkeeping system frustrates access to public records. While she acknowledges that the Open Records Law does not govern recordkeeping practices, she argues that that law is clearly implicated when a public agency's filing system is designed to conceal otherwise public records. At p. 4 of 93-ORD-19, we stated:
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.
Nor, we might add, is this Office empowered to conduct an investigation into the University's recordkeeping practices. If Ms. Cockrel has gathered evidence of willful concealment, she may pursue her remedies under KRS 61.991(2)(a).
Ms. Cockrel 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
Dr. Donald B. Clapp
Vice President for Administration
Office of the President
104 Administration Building
University of Kentucky
Lexington, Kentucky 40506-0032
Ms. Jerri Cockrel
Home Economics Extension Programs
205 Scovell Hall
University of Kentucky
Lexington, Kentucky 40506-0064