TO BE PUBLISHED
94-ORD-12
February 1, 1994
IN RE: Jerri Cockrel/University of Kentucky
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Ms. Jerri Cockrel, Extension Public Policy Specialist in the Cooperative Extension Service of the College of Agriculture at the University of Kentucky, to the University's records custodian, Mr. Donald B. Clapp, on June 3, 1993. Ms. Cockrel requested a copy of:
[T]he record(s) that identify the name and storage location of written 'initiating documents' that served as complaints of age discrimination that are submitted to the Office of Nancy Ray.
Ms. Cockrel restricted her request "to these records that identify this file name and storage location as they are specified by the rules, regulations, etc. of the Department of Libraries and Archives controlling the U.K. Records Management Program for the creation, maintenance and disposal of such submitted complaints." Mr. Clapp responded to Ms. Cockrel's request on June 8, 1993, advising her that "[a] record as described does not exist."
Ms. Cockrel subsequently submitted this appeal to the Kentucky Department for Libraries and Archives, asking that the Department forward it to this Office, thereby "'initiat[ing] . . . action with the Attorney General' [as] described in KRS 171.530." Her appeal was transmitted to this Office by Mr. Richard N. Belding, Director of the Public Records Division of the Department for Libraries and Archives.
In her lengthy letter of appeal, Ms. Cockrel weaves together provisions of Chapter 61, the Open Records Law, and Chapter 171, relating to state archives and records, in an attempt to secure "a binding enforcement decision by the Attorney General that the Official Custodian [of Records] must be aware of the existence of the policy document that also subserves his records management duties imposed by KRS 171.640/171.680." (Emphasis in original.) It is Ms. Cockrel's position that KRS 61.876(1) and KRS 171.640 operate in tandem to require the University to create a "policy record . . . concerning [the] organization of University records generated in connection with complaints on discrimination," and the organization of University records generally. She explains:
KRS 61.876(1) requires that each agency create a record on the subject of the records organization within the agency, the purpose of the policy being to ensure that records do not become unlocatable through "disorganization" of agency records. The policy record required to be created by KRS 61.876(1) must subserve and conform to the broader policies on records management programs for state agencies controlled by the Archives and Records laws. As stated in KRS 171.640, the creation, management and preservation of public agency records is controlled by the rules and regulations of the Department for Libraries and Archives. The subservience of the records organization component of records management programs of state agencies to the policies of the State Archivist is further declared by KRS 171.680, which explicitly states that "the records management programs of state agencies shall be in compliance with the provisions of KRS 171.410-171.40 [sic] and the rules and regulations of the department."
Ms. Cockrel's somewhat convoluted argument is premised on the theory that the rules and regulations which KRS 61.876(1) requires each agency to adopt "are controlled by the record management program for UK that complies with the rules and regulations of the Department for Libraries and Archives (KRS 171.680) that concern how agency records are 'managed and preserved' (KRS 171.640)." In her view, the University's failure to adopt rules and regulations "under the direction of the Department for Libraries and Archives, is a violation of both KRS 61.876(1) and KRS 171.640/680(4)."
This alleged wrong is exacerbated by the fact that Ms. Cockrel has since been advised, by a fellow faculty member, that a document satisfying her request does exist. That document, the University Records Retention and Disposal Schedule, was discovered in the Archives section of the King Library. Since this document "is intended to function as the description of the filing location of University records . . . ," pursuant to KRS 171.680, and since "the requirements for policies on records organization under KRS 171.680 . . . penetrates and overlaps the Open Records Law . . . ," and since "[t]he 'Official Custodian' is the individual charged under KRS 61.876(1), KRS 61.872(3)(4) [sic] and KRS 61.880(1)(4) [sic] with utilizing the policies on records-filing organization to verify the nonexistence of a requested record, prior to issuing an official response that the nonexistent record will not (cannot) be provided," Mr. Clapp's terse response is, in Ms. Cockrel's view, particularly egregious.
Ms. Cockrel argues that this is a case of first impression for the Attorney General insofar as the University denied the existence of a document which, in fact, exists. She asks that this Office issue a decision holding "that it was illegal for Open Records purposes for the Official Custodian to be unaware of the [disputed] documents," thereby remedying the apparent violations of both the Open Records, and the archives and records, laws.
We are asked to determine if the University of Kentucky violated the Open Records Act in its response to Ms. Cockrel's request. For the reasons set forth, we conclude that the University violated the Act by failing to provide her with a copy of its Records Retention and Disposal Schedule. We do not, however, concur with Ms. Cockrel in her circuitous arguments relative to the interrelation between Chapters 61 and 171 of the Kentucky Revised Statutes, and the wideranging duties purportedly imposed on the University's records custodian by operation thereof.
The purpose and intent of the Open Records Act is to permit the "free and open examination of public records." KRS 61.871. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he or she wishes to review. OAG 89-81; OAG 91-58; OAG 92-56. Thus, if a public agency is to provide access to public documents, the requester must identify them with sufficient clarity to enable the agency to locate and make them available. If the requester cannot describe the documents he wishes to inspect with sufficient specificity, there is no requirement that the public agency conduct a search for such documents.
As previously noted, Ms. Cockrel's request was couched in the following terms:
I request a copy of the record(s) that identify the name and storage location of written 'initiating documents' that served as complaints of age discrimination that are submitted to the office of Nancy Ray. I am restricting my request to those records that identify this file name and storage location as they are specified by the rules, regulations, etc. of the Department of Libraries and Archives controlling the U.K. Records Management Program for the creation, maintenance and disposal of such submitted complaints.
Admittedly, this language is far from a model of clarity. However, we do not believe that it is so ambiguous that it precludes the custodian from determining the identity of the document sought. [1] Had Mr. Clapp carefully analyzed the request, we have little doubt that he could have recognized it as a request for the University's records retention schedule, located a copy of the schedule, and made it available to Ms. Cockrel. To the extent that the custodian failed to provide her with the schedule, we hold that the University violated the Open Records Law.
We are not persuaded that the custodian has failed, or is otherwise deficient, in discharging his duties under the Open Records Law relative to Ms. Cockrel's request. In 94-ORD-8, this Office addressed this issue in the context of a vaguely worded request for the University records custodian's contract and job description. At page 4 of that decision, we observed:
KRS 61.870(3) defines the term 'Official Custodian' as 'the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care, and keeping of public records, regardless of whether such records are in his actual personal custody and control.' (Emphasis added.) The Official Custodian's role under the Open Records Act is not coextensive with the role of the 'head of each state and local agency,' under KRS 171.640, to make and preserve records containing adequate and proper documentation of the organizational functions, policies, decisions, procedures, and essential transactions of the agency. In his role as Official Custodian under the Open Records Act, he cannot direct the creation of records, but must insure their maintenance, care and keeping. In addition, he must process requests for public records, pursuant to KRS 61.872 and KRS 61.880(2). Should he fail in these duties, this Office will declare the agency to be in violation of the Open Records Act.
While we have little doubt that Mr. Clapp is fully aware of the existence of the University's records retention schedule, and that his failure to provide Ms. Cockrel with a copy of the schedule was attributable to the vagueness of her request and the context in which it appeared, we do not believe that he is responsible for records management pursuant to KRS 171.640, et seq.
Nor do we believe that Chapter 61, relating to Open Records, "penetrates and overlaps" Chapter 171, relating to state archives and records, with respect to a public agency's obligations under KRS 61.876. While there is certainly an essential relationship between the statutes, insofar as effective records management facilitates efficient governmental operation and public accountability, KRS 61.876 requires each public agency to adopt rules and regulations "in conformity with the provisions of KRS 61.870 to 61.884." (Emphasis added.) That statute provides, in part:
(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to 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 insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
(a) The principal office of the public agency and its regular office hours;
(b) The title and address of the official custodian of the public agency's records;
(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies;
(d) The procedures to be followed in requesting public records.
(2) Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public.
This provision is aimed at insuring that each agency will educate the public on its particular policies and practices relative to open records. Simply stated, the rules and regulations contemplated by KRS 61.876 are a "how-to" for persons who wish to submit an open records request. [2] The records retention and disposal schedule envisioned by Chapter 171 does not correspond to the rules and regulations for public agencies mandated by KRS 61.876, nor are agencies required to formulate these rules and regulations "under the direction of the Department for Libraries and Archives." The University must adopt rules and regulations pertaining to its open records policy, or it may adapt the uniform rules and regulations promulgated by the Finance and Administration Cabinet to its particular needs. It must post these rules and regulations in a prominent location accessible to the public with the goal of broadly disseminating them across the campus. The Open Records Law does not require more.
We remind Ms. Cockrel of the limited scope of the Open Records Law, and this Office's role in adjudicating disputes under that Law. At page 3 of 94-ORD-8, we noted:
Pursuant to KRS 61.880(2), the Attorney General is required to review a public agency's denial of a request to inspect a public record, if a complaining party wishes him to do so, and to issue a written decision stating whether the agency violated the Open Records Act. Although generally an appeal to the Attorney General is precipitated by an agency's denial of a records request, an appeal may come to him in a different posture. For example, a public agency may refuse to comply with the procedural requirements of the Act or otherwise subvert the intent of the Act short of denial of inspection. KRS 61.880(4). In these instances, the Attorney General is also empowered to issue a decision which, if not appealed to the circuit court within thirty days of issuance, has the force and effect of law. There are, however, limitations on the Attorney General's authority relative to the Open Records Act. More importantly, there are limitations on the scope of the Open Records Act itself.
Although the Attorney General may be called upon to intervene in the recovery of records when it comes to the attention of the Department of Library and Archives that those records are threatened with "unlawful removal, defacing, alteration, or destruction" pursuant to KRS 171.530, he is not empowered to issue a legally enforceable decision relative to these acts. His decisions under the Open Records Law are limited to the question of "whether the agency violated the provisions of KRS 61.870 to 61.884." KRS 61.880(2). Ms. Cockrel should bear these principles in mind in formulating future requests, and in submitting appeals to the Attorney General.
Ms. Cockrel 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 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.
CHRIS GORMAN
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
jgh/1554
Distributed to:
Hon. Donald B. Clapp
Vice President for Administration
and Custodian of Records
University of Kentucky
Administration Building
Lexington, KY 40506
Ms. Jerri Cockrel
Extension Public Policy Specialist
205 Scovell Hall
University of Kentucky
Lexington, KY 40506
Mr. Richard N. Belding
Director, Public Records Division
Department for Libraries and Archives
300 Coffee Tree Road
P. O. Box 537
Frankfort, KY 40602-0537
[1]Much of the University's apparent confusion vis-a-vis the identity of the document may be attributable to the context in which the request appears. The document is one of several requested by Ms. Cockrel, and is designated as request "1b." In request "1a.," Ms. Cockrel asks for "the file containing my 'initial document' that served to function my [sic] 'initiating complaint' of age discrimination." Mr. Clapp explains that no such document exists, since the individual to whom the complaint was made recalls that it was not reduced to writing. Given the fact that no record exists which satisfies the first portion of her complaint, the custodian may have assumed that no record of its "storage location" exists.
[2]See, e.g., the Uniform Rules and Regulations for State Administrative Agencies promulgated by the Finance and Administration Cabinet, 200 KAR 1:020 Section 5(2):NOTICEREGULATIONS GOVERNING INSPECTION OFTHE PUBLIC RECORDS OF THE (Name of State Administrative Agency) (Office, Bureau, Division, Etc.) Pursuant to KRS 61.870 to 61.884, the public is notified that, as provided herein, the public records of the above named Agency of the Commonwealth of Kentucky are open for inspection by any person on written application to (name), (title), official custodian of the public records of the (state administrative agency) whose address is or to (name), (title), official custodian of the public records of the , (office, bureau, division, etc.) whose address is , from a.m. to p.m., Monday through Friday, each week, except holidays. Application forms for the inspection of the public records of this agency will be furnished on request to any person by an employee in this office. Assistance in completing the application form will be provided by an employee on request. Applicants for the inspection of public records shall be advised of the availability of the records requested for inspection, and shall be notified in writing not later than three (3) working days after receipt of an application for inspection of any reason the records requested are not available for public inspection. Copies of written material in the public records of this agency shall be furnished to any person requesting them on payment of a fee of ten (10) cents a page; copies of nonwritten records (photographs, maps, material stored in computer files or libraries, etc.) shall be furnished on request, on payment of a charge equal to the actual cost of producing copies of such records by the most economic process not likely to damage or alter the record. This the day of , 19 . (Agency Head or Designated Representative)