TO BE PUBLISHED
July 7, 1995
In re: David C. Payne/University of Kentucky
OPEN RECORDS DECISION
This appeal originated in the submission of a request to inspect public records by David C. Payne, an associate professor in the University of Kentucky's College of Human Environmental Sciences, Department of Family Studies, to the University on December 2, 1994. Among other records, Mr. Payne requested access to:
[A]ll materials in Dr. Brock's file relating to two meetings of the tenured faculty in the Department of Family Studies [which occurred in late 1988 and early 1989] in which each tenured faculty member voted on whether he or she had any confidence in Dr. Brock's continuing as Chair of the Department of Family Studies (the vote was 10 "No," 0 "Yes" each time[.)]
Mr. Payne submitted his request to Retia Walker, Dean of the Department of Family Studies.
Dean Walker orally responded to Mr. Payne's request on December 19, 1994. She responded in writing on January 10, 1995, advising him as follows:
[I have r]eviewed the files and informed you that I did not find information indicating that tenured faculty in the Family Studies Department voted on the "confidence level" related to Dr. Brock's continuation in his role as Chair of the Department.
Thus, Dean Walker confirmed what she had previously explained to Mr. Payne in their December 19 conversation.
On February 16, 1995, Mr. Payne requested "an official 'no record exists' statement" from the University's Official Custodian of Records, George J. DeBin. On February 21, Mr. DeBin responded as follows:
I have again conferred with Dr. Walker concerning your request . . . . There are no records responsive to your request. However, I do not think that the demand for a response from me is appropriate as your open records request for this record was never filed with my office.
Mr. DeBin questioned why Mr. Payne originally submitted his request to Dean Walker rather than to him as custodian of records, and why, on the other hand, he demanded an "official .Ê.Ê. statement" from his office when he had "already received written notification from Dr. Walker."
In his letter of appeal, Mr. Payne asks that the Attorney General determine whether the University's inability to produce the requested record, as a consequence of its apparent loss or destruction, constitutes a violation of KRS 61.8715 "in that said [loss or] destruction subverted the essentially related intents of the Open Records and Archives and Records laws." In addition, he asks that we render a decision on what he characterizes as the custodian's "refusal" to provide him with a formal response to his request. Because we believe that the University fully discharged its procedural obligations relative to the Open Records Act by issuing a response on February 21 in which it expressly stated that "[t]here are no records responsive to [Mr. Payne's] request,"  we will confine our analysis to the first issue he raises. For the reasons set forth below, we conclude that the loss or destruction of the disputed record did not constitute a violation of KRS 61.8715.
In a letter to this office dated May 22, 1995, Mr. DeBin elaborated on the University's position relative to the issue of the missing record. Noting that the University is not required to maintain a record of, or even conduct, a vote of the tenured faculty on their confidence level in the performance of a departmental chair, Mr. DeBin asserted that "there is no evidence that any such record ever existed." Nevertheless, he observed, Dean Walker "did check Dr. Brock's file (the location to which the records request asked that she check), and that file did not contain the records that Dr. Payne claims to exist and is seeking." Finally, Mr. DeBin argued, assuming the record ever existed, its loss predates the enactment of KRS 61.8715, and the failure of the University to effectively safeguard the record cannot be deemed a violation of that provision of the Open Records Law.
Among the sweeping changes wrought by the General Assembly in the 1994 session was the introduction of legislative findings at KRS 61.8715. That statute provides:
The General Assembly finds an essential relationship between the intent of this chapter and that of KRS 171.410 to 171.740, dealing with the management of public records, and of KRS 61.940 to 61.957, dealing with the coordination of strategic planning for computerized information systems in state government; and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes. The General Assembly further recognizes that while all government agency records are public records for the purpose of their management, not all these records are required to be open to public access, as defined in this chapter, some being exempt under KRS 61.878.
In construing this provision, the Attorney General has formally observed:
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. 10.
Based on this analysis, in 94-ORD-141, a decision with which the parties to this appeal are familiar, we concluded that the loss or destruction of a public record creates a rebuttable presumption of records mismanagement. It is instructive to quote from that decision at length:
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.
94-ORD-141, p. 5.
In 94-ORD-141, the University did not raise as a defense the fact that the records sought by Mr. Payne were destroyed prior to the enactment of KRS 61.8715. Accordingly, we did not consider this defense. The University now affirmatively asserts that if such a record ever existed, it was lost or destroyed prior to July, 1994. In the absence of any evidence to the contrary, we must accept the University's assertions. Consistent with the rule of statutory construction codified at KRS 446.080(3), providing that no statute shall be construed to be retroactive, unless expressly so declared, we find that the loss or destruction of a record which occurred prior to the enactment of KRS 61.8715 cannot be said to constitute a violation of that provision. Thus, the University's inability to produce the records in Dr. Brock's file relating to two meetings of the tenured faculty in the Department of Family Studies does not violate KRS 61.8715. Were there evidence suggesting that the record was lost or destroyed after July, 1994, we would apply the higher standard of review mandated by KRS 61.8715.
Nevertheless, based on the analysis which follows relative to the adequacy of the University's search for the record, we believe that the outcome of this appeal would be the same regardless of when it was lost or destroyed. In a response to Mr. DeBin's May 22 letter to the Attorney General, Mr. Payne questions the adequacy of the University's search for the disputed record. He notes that Mr. DeBin offers no evidence that he contacted any faculty members who may have attended the meetings at which the "confidence" votes were taken to ascertain whether they retained a copy of the record documenting those meetings. Continuing, Mr. Payne observes:
Each attending faculty member was provided a copy of the record [dated January 26, 1989], which none was obligated to keep, since the ex-Dean's office copy is the copy to be permanently maintained under the UK Records and Retention and Disposal [sic] Schedule. I have obtained, by means outside the Open Records Law, a copy that was sent to a faculty member, verifying that such a record was created (see attached copy.)
In view of the fact that the search conducted by the University produced no record, and a record does exist which appears to satisfy Mr. Payne's request, we are compelled to examine the adequacy of the University's search.
As noted, since July, 1994, the Attorney General has applied a higher standard of review relative to denials based on the nonexistence, destruction, or loss of public records. In order to satisfy its statutory burden of proof, a public agency must document what efforts were made to locate the missing records. 94-ORD-141. The Attorney General has never articulated a standard by which to measure the adequacy of an agency's search for public records. In our view, the Open Records Act does not require an agency to conduct "an exhaustive exhumation of records," Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D. N.Y. 1983). It is, however, incumbent on an agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, supra at 775. Thus, the agency must expend reasonable efforts to identify and locate the requested records. And, if the documents do exist, and the public agency cannot locate them, the agency's "good faith [sh]ould not be impugned unless there was some reason to believe that the supposed documents could be located without an unreasonably burdensome search." Goland v. Central Intelligence Agency, 607 F.2d 339, 353 (D.C. Cir. 1979). In assessing the adequacy of an agency search, we "need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).
Both Dean Walker and Mr. DeBin explained to Mr. Payne that a review of Dr. Brock's files disclosed no records which were responsive to his request. Since Mr. Payne requested "[a] copy of all materials in Dr. Brock's file . . .," (emphasis added), this was clearly the search method which could reasonably be expected to produce the records requested. We believe the University's statements adequately demonstrate the thoroughness of its search for a responsive record. Any further effort to locate the record, as described by Mr. Payne, would have been unreasonable here. It is the opinion of this office that the University satisfied its statutory burden of proof by documenting what efforts were made to locate the record sought by Mr. Payne, and that its search for the record were adequate under the standard articulated above.
Mr. Payne 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, Ed. D.
College of Human Environmental Sciences
Department of Family Studies
315 Funkhouser Building
University of Kentucky
Lexington, KY 40506-0054
Much of the confusion surrounding this issue stems from the fact that Dean Walker apparently instructed Mr. Payne to direct his records request directly to her, and not to the custodian of records. Since this dispute arose, the University has implemented a formal policy requiring submission of all open records requests to the custodian, and Dean Walker has been apprised of this policy. Accordingly, we envision no future problems with respect to this issue.