June 7, 1994







IN RE: David C. Payne/University of Kentucky






This appeal originated in a request for a public record submitted by Mr. David C. Payne, an associate professor in the University of Kentucky's Department of Family Studies, to the University's Official Custodian of Records, Mr. Donald B. Clapp, on October 8, 1993. Mr. Payne requested "a copy of the 'notification' submitted by the University officer identified in KRS 171.710 [sic] to the Department for Libraries and Archives that Dean Meszaros improperly shredded my personnel records." In a response dated October 13, 1993, Mr. Clapp denied Mr. Payne's request, advising him that "[n]o record as requested exists."


Mr. Payne appealed the University's denial of his request through the Department for Libraries and Archives, asking that the Department "exercise the provisions of KRS 171.530 to 'initiate' acting [sic] with the Attorney General in connection with the present Archives and Records law violation by the University of Kentucky." His appeal was forwarded to this Office by Mr. Richard Belding, Director of the Public Records Division of the Department of Libraries and Archives.


In his letter of appeal, Mr. Payne explains that certain peer review materials in his promotion dossier were improperly destroyed by the former Dean of the College of Human Environmental Science shortly after she denied his promotion. According to Mr. Payne, the President of the University was notified that the records had been destroyed, presumably

through the University Senate Advisory Committee on Privilege and Tenure's 1991-92 Annual Report, a copy of which he attached to his appeal. Once the President became aware of the destruction of these documents, he was, in Mr. Payne's view, obligated to give notice to the Department for Libraries and Archives pursuant to KRS 171.720, and document his compliance with this provision as an "essential transaction of the agency" pursuant to KRS 171.640. Since the custodian's response indicates that no record exists of the required notification, Mr. Payne suggests that either the President failed to discharge his statutory duty, or the custodian did not truthfully respond to his request.


Based on this recitation of the facts, Mr. Payne concludes:


In the present situation, the University of Kentucky Official Custodian has issued an Open Records response that a statutorily required record documenting the President's statutorily required action does not exist. If upon Open Records appeal to the Attorney General your office decides upon the available facts that the response by the Official Custodian was proper, that is, it must be accepted that no record exists, then it will also by coincidence of circumstances serve to establish that either KRS 171.640 has been violated (i.e. notification was given, but the President failed to create a documentary record) or KRS 171.710 [sic] has been violated (i.e., the documentary record does not exist because the President failed to provide the statutorily required notification). Alternatively, if the Attorney General

decides upon the available facts that the response by the Official Custodian was improper, that is, the record must exist, then it will serve to satisfy the intent of the 1992 amendment to KRS 61.878(3) by requiring the Official Custodian to provide me access to this University record that concerns the destruction of my own personnel records.


Mr. Payne seeks a legally binding Attorney General's decision that the University has violated both the Open Records Law, codified at Chapter 61 of the Kentucky Revised Statutes, and the Libraries and Archives laws, codified at Chapter 171 of the statutes.


In a followup letter to this Office, Mr. Payne notes that in 94-ORD-8, we held that the official custodian of records is charged with the "maintenance, care and keeping" of agency records, and that if he or she fails to discharge this duty, we will declare the custodian to be in violation of the Open Records Law. Continuing, he observes:


[T]he University of Kentucky has admitted in writing . . . that my records were improperly destroyed. Thus, Donald Clapp, the Official Custodian, failed to enforce his Open Records duties to ensure the agency maintain, care for, and keep these records.


Mr. Payne therefore asks that we declare Mr. Clapp's failure to discharge these duties relative to his records a violation of the Open Records Law.


The question presented in this appeal is whether the University of Kentucky violated the Open Records Law in its handling of Mr. Payne's request. For the reasons set forth below, we conclude that because the University could not provide access to a nonexistent record, its response that the requested record did not exist was proper. With respect to the destruction of Mr. Payne's promotion dossier, we find that because Mr. Payne did not request access to the dossier, the issue presented in this portion of his appeal is not ripe for review.


In response to his request for a copy of the notification submitted by the President of the University to the Department for Libraries and Archives pursuant to KRS 171.720, Mr. Clapp advised Mr. Payne that "[n]o record as requested exists." In 93-ORD-19, this Office recognized that a public agency cannot afford a requester access to records which it does not have or which do not exist. We have confirmed, through Mr. Belding, that the Department for Libraries and Archives never received notification from the President of the University that records had been improperly destroyed. We find that 93-ORD-19 is controlling as it relates to Mr. Payne's request. The University cannot provide access to a nonexistent record. Whether such notification should exist is a separate issue, and one which is not generally cognizable under the Open Records Law.


Mr. Payne next objects to the failure of the custodian of records to "maintain[ ], care [for] and keep [ ]" agency records, and in particular, his promotion dossier pursuant to KRS 61.870(3). He notes that this Office recently held that failure to discharge these duties, along with the duty to comply with KRS 61.872 and KRS 61.880(1), constitutes a violation of the Open Records Law. While we concur with Mr. Payne in his view that the custodian is, by definition, charged with certain duties relative to the maintenance of agency records, we cannot rule, in the present appeal, that his apparent failure to do so constitutes a violation of the law. Mr. Payne does not state, nor is there evidence to indicate, that he requested access to his promotion dossier. This being the case, the University was never presented with the opportunity to properly or improperly deny his request, and the issue is not ripe for appeal.


It goes without saying that the official custodian of records under Chapter 61, like the "head of each state and local agency" under Chapter 171, should inform agency officials and employees that records are not to be destroyed except in accordance with law. KRS 61.870(3); KRS 171.710. Records maintenance is critical to both the custodian of records and the agency head under Chapters 61 and 171. The custodian's role under Chapter 61 is not, however, co-extensive with that of the agency head under Chapter 171. 94-ORD-8. The custodian cannot cause to be created records documenting organizational functions, policies, decisions, procedures, and essential transactions of the agency if such records do not already exist. KRS 171.640. Once those records are created, however, he can and should concentrate his energies on insuring their maintenance, care, and keeping. Anything less than this suggests an improper disregard for the Open Records Law.


Thus, although we do not hold that Mr. Clapp violated the Law in failing to fully discharge his duties as official custodian of records, that issue having not been properly presented to us, it is incumbent on us to underscore the importance of the dual role which he serves. As custodian, he is directly responsible for maintaining public records as well as responding to records requests. In discharging these duties, he should make every effort to insure that University personnel are thoroughly schooled in the underlying principles, as well as the mechanics of, the Open Records Law. We urge the University and Mr. Clapp to bear these observations in mind.


The University and Mr. Payne may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.













Distributed to:


Hon. Donald B. Clapp

Vice President for Administration

and Official Records Custodian

University of Kentucky

104 Administration Building

University of Kentucky

Lexington, KY 40506-0032


Mr. David C. Payne

4256 Clemens Drive

Lexington, KY 40514


Mr. Richard Belding, Director

Public Records Division

Kentucky Department for Libraries & Archives

300 Coffee Tree Road

P. O. Box 537

Frankfort, KY 40602-0537