NOT TO BE PUBLISHED
November 29, 1994
IN RE: David C. Payne/University of Kentucky
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Mr. David C. Payne, an associate professor in the University of Kentucky's Department of Family Studies, to the University's records custodian, Mr. George DeBin, on August 16, 1994. Mr. Payne requested access to:
[T]he original letters submitted to Dr. Gregory Brock, Chair, Department of Family Studies, in November-December 1990 as part of the process relating to my being evaluated for promotion to the rank of Full-Professor. These letters were obtained from departmental faculty and students, faculty outside the department but at the University of Kentucky, and faculty outside the University of Kentucky.
Mr. Payne emphasized that he did not wish to inspect copies of the original letters, obtained at a later date, but "the original letters themselves."
In a response dated August 19, 1994, Mr. DeBin advised:
Although I am not certain why you filed an open records request for these "original" letters you already know we cannot retrieve for you, I am providing you with a copy of the agreement signed by yourself and others that memorializes the fact that those letters were erroneously destroyed and provided for the reconstruction of your dossier.
Mr. DeBin thus confirmed that the requested records no longer exist.
In his letter of appeal, Mr. Payne urges this office to issue a decision that Ms. Peggy S. Meszaros, former Dean of the College of Human Environmental Sciences, violated the Open Records Law by destroying portions of his 1990 promotion dossier. Additionally, he asks that we find that Mr. Donald B. Clapp, former custodian of records at the University, violated the Open Records Law "by failing to enforce his open records duties to insure that the agency maintain, care for, and keep these records." For the reasons set forth below, we conclude that the University did not violate the Open Records Law, insofar as it cannot make available records which do not exist or have been destroyed, but that its failure to implement an adequate program for insuring records preservation constitutes a subversion of the intent of the Open Records Act and, at least arguably, the State Records and Archives Act.
The University does not rely on any of the exceptions to the Open Records Law, codified at KRS 61.878(1), in denying Mr. Payne's request. Instead, the University asserts that the records were "erroneously destroyed," and are therefore not available for inspection. KRS 61.870(2) defines the term "public record" as "all books, papers, maps, photographs, cards, tapes, 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." "[T]o provide accountability of [its] activities," the University is "required to manage and maintain [its] records according to the requirements" of the Open Records Act, KRS 61.870 - 61.880, the State Archives and Records Act, KRS 171.410 - 171.740, and the Information Systems Act, KRS 61.940 to 61.957. KRS 61.8715. The General Assembly has thus recognized that there is an "essential relationship" between these statutes. KRS 61.8715.
In a recent decision directed to the University of Kentucky, this office analyzed the language of KRS 61.8715 in considerable depth. While the University is undoubtedly familiar with that decision, we believe that portions of it have a direct bearing on this appeal. We therefore quote from that decision at length:
The "basic policy" of the Open Records Act, recognized by Kentucky's courts, and codified at KRS 61.871, "is to afford free and open examination of public records . . . ." Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324 (1992); Frankfort Publishing Co., Inc. v. Kentucky State University, Ky., 834 S.W.2d 688 (1992) [(Footnote omitted.)] To this end, an agency must adopt rules and regulations which conform to the provisions of KRS 61.870 to 61.884:
[T]o provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to ensure efficient and timely action in response to application for inspection . . . .
KRS 61.876(1) (emphasis added). The responsibility for the "maintenance, care and keeping" of the agency's public records is assigned to the official custodian of records. KRS 61.870(5). This position may be occupied by the chief administrative officer or any other officer or employee of a public agency vested with these duties.
Until July 15, the State Archives and Records Act, codified at KRS 171.410, tracked a parallel path to that of the Open Records Act. Those paths now converge. Under the provisions of the Archives and Records Act, "[t]he head of each state and local agency shall establish and maintain an active continuing program for the economical and efficient management of the records of
the agency." KRS 171.680. The agency's program must provide for:
(a) Effective controls over the creation, maintenance, and use of records in the conduct of current business;
(b) Cooperation with the department in applying standards, procedures, and techniques designed to improve the management of records;
(c) Promotion of the maintenance and security of records deemed appropriate for preservation, and facilitation of the segregation and disposal of records of temporary value;
(d) Compliance with the provisions of KRS 171.410 to 171.740 and the rules and regulations of the department [for Library and Archives].
Among the duties imposed on the agency head by operation of these provisions, he must "establish such safeguards against removal or loss of records as he shall deem necessary and as may be required by rules and regulations issued under authority of KRS 171.410 to 171.1740." KRS 171.710. These safeguards include "making it known to all officials and employes of the agency that no records are to be alienated or destroyed except in accordance with law, and calling attention to the penalties provided by law for the unlawful removal or destruction of records." KRS 171.710.
In enacting KRS 61.8715 the General Assembly recognized that the intent of the Open Records Act, to provide full access to public records, was essentially related to, and would be promoted by, efficient records management. This, of course, is the intent and purpose of the State Archives and Records Act. Subversion of the intent of the Archives and Records Act thus constitutes subversion of the intent of the
Open Records Act. If a public agency fails to discharge its statutorily mandated duty to establish effective controls over the creation, maintenance, and use of records, and to make known to all of its officials and employees that no records are to be destroyed except in accordance with the law, the agency subverts the intent of the Open Records Act by frustrating full access to public records.
94-ORD-121, p. 8-10.
The Attorney General has long recognized that a public agency cannot afford a requester access to records which do not exist or have been destroyed. See, e.g., OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203. We have also recognized that it is not our duty to investigate in order to locate documents which do not exist or have been destroyed. OAG 86-35. As we observed in OAG 86-35, at page 5, "This office is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the party seeking to inspect such documents." However, since July 15, 1994, when the amendments to the Open Records Act took effect, we have applied a higher standard of review relative to denials based on the nonexistence, or here the destruction, of the requested records. In order to satisfy its statutory burden of proof, a public agency must, at a minimum, document what efforts were made to locate the missing records. Because the University of Kentucky failed to provide even a minimal explanation for the loss of the requested records, we are compelled to conclude that the University failed to adequately manage its records. The loss or destruction of a public record creates a presumption of records mismanagement, but this presumption is rebuttable. The University failed to overcome the presumption because it offered no explanation for the destruction of the records.
While we do not find, as a matter of law, that the University violated the Open Records Act by failing to afford Mr. Payne access to the requested records, those records having been destroyed, we do find that the University subverted the intent of the Act by failing to establish effective controls over the creation, maintenance, and use of those records, and to properly educate its employees on their records management duties, thus frustrating full access to its records. We have also referred this matter to the Department for Libraries and Archives, Public Records Division, for a determination of
whether the University violated the provisions of Chapter 171, and in particular KRS 171.680, 171.710, and KRS 171.720, relative to its duty to manage and preserve its public records, and to establish safeguards against removal or destruction of those records.
Ultimately, of course, we cannot afford Mr. Payne the relief he seeks, to wit, access to the original letters submitted to Dr. Brock in 1990 relative to his promotion to the rank of full professor. We cannot order the disclosure of records which have been destroyed. Nor can we order the University to reevaluate its records management program. As we noted at page 11 of 94-ORD-121:
KRS 61.880(2)(a) expressly provides an administrative remedy for violation of the Open Records Act by and through the Attorney General. That remedy lies in the submission of a written appeal and the issuance of a written decision stating whether the agency violated, or otherwise subverted the intent of, provisions of KRS 61.870 to 61.884. It is an "elementary canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court [and, of course, this Office] must be chary of reading others into it." Transamerica Mortgage Advisors, Inc. v. Lewis, 441 U.S. 11, 19, 62 L.Ed.2d 146, 100 S.Ct. 242 (1979), quoted in Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 149, 63 L.Ed.2d 267, 280, 100 S.Ct. 960 (1980).[(Footnote omitted.)]
Rather, and as we explained in 94-ORD-121, it is in the State Archives and Records Act that Mr. Payne's remedies lie. At page 12 and 13 of that decision, we observed:
That Act carries with it a number of severe penalties for violation of the provisions relating to the creation of agency safeguards against removal or loss of records, notification to the Department of Library and Archives of actual, impending or threatened destruction of records, and records destruction generally. KRS 171.990(3) provides:
Any person knowingly violating the rules and regulations of the department pursuant to the provisions of KRS 171.450, 171.560, 171.670, 171.710, or 171.720 is guilty of a Class A misdemeanor and is also liable for damages or losses incurred by the Commonwealth. Any state employe who knowingly violates these provisions shall also be subject to dismissal from state employment upon a determination of fact, at a hearing, that a serious violation did occur. The employe's right to appeal to the state personnel board is not abridged or denied. In the event of an appeal, the decision of the state personnel board is final.
In our view, these are powerful weapons in the war on agency records mismanagement.
In view of the severity of these penalties, we again urge the University to reexamine its records management program to insure that it conforms to the cited provisions of the Open Records and State Archives and Records Acts.
Mr. Payne and the University of Kentucky may challenge this decision by initiating action in the appropriate circuit court. 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.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Mr. George DeBin
Official Records Custodian
11 Administration Building
University of Kentucky
Lexington, KY 40506-0032
Mr. David C. Payne
4256 Clemens Drive
Lexington, KY 40514
Mr. Richard N. Belding, Director
Public Records Division
Department for Library and Archives
300 Coffee Tree Road
P.O. Box 537
Frankfort, KY 40602-0537