June 16, 1997

In re: Dorothy Lee/Natural Resources and Environmental Protection Cabinet

Open Records Decision

This matter comes to the Attorney General on appeal from the actions of the Underground Storage Tank Branch, Division of Waste Management, Natural Resources and Environmental Protection Cabinet, in response to Ms. Dorothy Lee's open records request to inspect a copy of an Underground Storage Tank Site Investigation Report, made by Mr. Kip Groce on April 7, 1997, concerning an underground storage tank located at the Old Olive Hill Elementary School, in Olive Hill, Kentucky.

In her letter of appeal, dated May 22, 1997, Ms. Lee stated that she had received no response to her request.

On May 19, 1997, we sent a "Notification of Receipt of Open Records Appeal" to the Office of Legal Services, Natural Resources and Environmental Protection Cabinet, and enclosed a copy of Ms. Lee's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, by letter dated May 22, 1997, Bryon Alan Thompson, Esq., Office of Legal Services with the Cabinet, provided this office with a response to the issues raised in the appeal. In his response, Mr. Thompson stated:

Ms. Lee is welcome to have a copy of the report she requested. The Cabinet intends to comply with her request but is unable to do so at this time. The document requested is what the Cabinet terms an "Underground Storage Tank Site Investigative Report." The Cabinet agrees that Mr. Groce investigated the site that day and did compile the report. After investigation the Cabinet has concluded at this time that the report has been lost, misfiled or misplaced in the Regional Office. The Cabinet is reviewing the files of other matters that were handled on that day and is generally searching the office with the expectation that the report will be found. In the event that the report cannot be located, Mr. Groce will prepare another "Underground Storage Tank Site Investigative Report" for this inspection, and Ms. Lee is welcome to have a copy of it.

The Cabinet would request a reasonable time to search for this report or otherwise compile another "Underground Storage Tank Site Investigative Report." If I can be of any further assistance in resolving this matter, please do not hesitate to contact me.

We are asked to determine if the Cabinet's actions were consistent with provisions of the Open Records Act. For the reasons which follow, we conclude that the Cabinet's failure to respond to Ms. Lee's request in writing within three business days after receipt of the request, as required by KRS 61.880(1), was a procedural violation of the Act. We further find that the Cabinet did not violate the Open Records Act, insofar as it could not make available a record which has been lost, misplaced, or no longer exists, as this office 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 91-203; 97-ORD-82.

However the Cabinet's failure to adequately manage its records so that they can be retrieved and made available to the public constitutes a subversion of the intent of the Act, and may also constitute a violation of Chapter 171 of the Kentucky Revised Statutes relating to the management of public records.

KRS 61.8715 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, in 94-ORD-121, p. 10, 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.

Based on this analysis, in 94-ORD-141, we concluded that the loss or destruction of a public record creates a rebuttable presumption of records mismanagement. 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 loss, of the requested record. 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 record. Because the Cabinet failed to provide an explanation for the loss of the requested record, we are compelled to conclude that the Cabinet 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 Cabinet failed to overcome the presumption because it offered no explanation for the loss of the requested record.

While we do not find, as a matter of law, that the Cabinet violated the Open Records Act by failing to afford Ms. Lee access to the requested record, that record having been lost, we do find that the Cabinet subverted the intent of the Act by failing to establish effective controls over the creation, maintenance, and use of its records to ensure against the loss of a public record, thus frustrating full access to its records. 94-ORD-141, p. 5.

We do recognize that the Cabinet went further than the Open Records Act requires by creating another "Underground Storage Tank Site Report" of the April 7, 1997 inspection in an attempt to mitigate its loss of the requested record. However, its failure to adequately maintain the original record denied Ms. Lee full access to public records.

Accordingly, we have referred this matter to the Department for Libraries and Archives, Public Records, for a determination of whether the Cabinet violated provisions of Chapter 171, and in particular KRS 171.640 and KRS 171.710, relative to its duty to manage and preserve its public records, and to establish safeguards against removal or loss of those records.

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. 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 proceeding.

A. B. Chandler III

Attorney General

James M. Ringo

Assistant Attorney General


Distributed to:

Dorothy Lee

P.O. Box 124

Olive Hill KY 41164

Glenna Jo Curry

Office of Legal Services

Natural Resources and Environmental

Protection Cabinet

5th Floor, Capital Plaza Tower

Frankfort KY 40601