NOT TO BE PUBLISHED 

94-ORD-156

December 16, 1994

IN RE: William C. Jacobs/University of Kentucky

OPEN RECORDS DECISION

On behalf of his client, Dr. Joseph M. Hayse, Mr. William C. Jacobs challenges the actions of the University of Kentucky relative to his July 29, 1994, request for various University records. Those records are identified as:

requires creation of a documentary file record was frequently violated;

4. A particular documentary record pertaining to [his] client.

Although Mr. Jacobs submitted a 16-page letter of appeal, along with 25 multi-paged exhibits, he did not include his original request. He did, however, attach two letters from the University's Custodian of Records, Mr. George DeBin, each of which is six pages long, and contains a lengthy recitation of what were apparently Mr. Jacobs's original requests for numerous and varied University records, and the University's response thereto.

The University of Kentucky responded orally to Mr. Jacobs's requests on August 2, through University counsel, Paul Van Booven. Although we have no written record to substantiate Mr. Jacobs's claims, he asserts that Mr. Van Booven advised him that although some records were easily accessible and would be released to him immediately, the University would need addi- tional time to respond to his other requests. The following day, he received those records along with a written explanation for the delay. The University's Custodian of Records, Mr. DeBin, advised him that "due to the absence of an officer with knowledge of the location of certain records there would be an additional delay of two weeks." "No further explanation," Mr. Jacobs averred, "was offered . . . ."

Mr. Jacobs contacted Mr. Van Booven two weeks later, and was again advised that the University needed an additional two weeks to retrieve the remaining records. This transaction was apparently oral, and we have no record to substantiate his claim. On August 31, Mr. Jacobs received a second letter from Mr. DeBin. It is this response which Mr. Jacobs challenges.

In response to Mr. Jacobs's request for procedural regulations referred to in a 1974 memo issued by the University's President, Mr. DeBin stated, "A record which documents the 'parts' of the regulations to which the President referred cannot be located." He responded in a similar fashion to Mr. Jacobs's request for procedural regulations of the college and department in which Mr. Jacobs's client was employed, and records documenting "the official transactions to adopt those procedures. . . ," advising him that the University was unable to locate a record responsive to this request. Mr. DeBin issued the same response to Mr. Jacobs's request for

complaints and reports of complaints filed by faculty members relative to the failure of academic units to perform second and fourth year progress reviews, and to his request for his client's second and fourth year progress reviews.

In his letter of appeal to this office, Mr. Jacobs argues that the University is required by statute to maintain those records, and that the University is also required by statute to house them in specific locations. Accordingly, the custodian cannot reasonably assert that he is uncertain whether they exist, and if they exist, where they are housed. Mr. Jacobs observes:

The problem here is the inadequacy of the Official Custodian's search for the requested records. As held in 93-ORD-41, an agency cannot plead disorganized records maintenance practices to avoid searching for and locating existing records. KRS 61.870(5) and KRS 61.876(1) require the Official Custodian to ensure the "maintenance" of agency records against "disorganization." KRS 171.520 and 171.680 further express this intent by specifically requiring that each agency maintain its records in an "efficient" manner, so as to prevent frustration of public access and public accountability, and KRS 61.871 [sic] specifically declares the intent of KRS 61.870(5)/61.876(1) to be "essentially related" to that of KRS 171.520/171.680 on this point.

It is Mr. Jacobs's position that the University failed to meet its statutory burden of proof by providing evidence of what steps it took to locate the records, or explain their apparent nonexistence. In his prayer for relief, he asks that this office render a decision declaring the University's response violative of the Open Records Act. In addition, he requests that we direct the custodian to "conduct a search 'reasonably calculated' to locate the record . . . ." Finally, he asks that this office issue a finding that the University representatives' conduct following his request "amounted to an improper protraction of the provision of the records beyond the minimal time allowed by law, and thus served to improperly frustrate the 'intent' of the Open Records Law (KRS 61.880(4)." 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 cannot be located or otherwise do not exist, 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. Jacobs's request. Nor does the University assert that the records do not exist. Instead, the University asserts that the records cannot be located 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:

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;

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 171.174." 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 lost or 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 lost or 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 loss or 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 of its inability to locate 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 loss 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. Jacobs access to the requested records, those records having apparently been lost, 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 171.640, 171.680, and KRS 171.710, 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. Jacobs the relief he seeks, to wit, access to the documents identified in his July 29 request. We cannot order the disclosure of records which have been lost. 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. Jacobs'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.

With respect to Mr. Jacobs's allegations that the University "frustrate[d] the 'intent' of the Open Records Law" by failing to adequately respond to his request within three business days, as required by KRS 61.880(1), we find that the University's handling of the request constitutes a violation of the Open Records Act.

The issues presented in this portion of Mr. Jacobs's open records appeal are of a procedural, rather than a sub- stantive, character. This is not to trivialize or otherwise detract from their importance. As we noted in 93-ORD-125, at page 5, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request."

KRS 61.880 sets forth the duties and responsibili- ties of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision

requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted.

Nothing in the statute permits an agency to indefinitely postpone or delay this statutory deadline. The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to provide the requester with timely access to the requested records.

KRS 61.872(5) provides:

If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately so notify the applicant and shall designate a place, time and date, for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection.

Mr. Jacobs's initial open records request was submitted on July 29, 1994. Those documents which the University was able to locate and which satisfied portions of his requests were released over a period of time extending from July 30, 1993, through August 31, 1994. Hence, some thirty-two days elapsed

between the date of his initial request and the date of the last reported communication from the University relative to release of the records.

The University attempted to provide "a detailed explanation" of the cause of the delay and arrange for inspection at the earliest possible date. In his August 3 letter to Mr. Jacobs's associate, Mr. DeBin explained that many of the requested records "are at the office of outside counsel and other records are in storage." Additionally, he noted, the individual in the Office of the Chancellor who was most

knowledgeable about the records was on vacation. "Timely access" to public records has been defined as "any time less than three days from agency receipt of the request." OAG 84-300, p. 3. In OAG 83-23, at page 4, we expressly held that an agency had not acted in accordance with KRS 61.870 to 61.1884 "in its failure to allow inspection or make a proper response to [a] request to inspect records after three months from the date of [the] initial request." See also, OAG 91-200; OAG 92-35. Mr. Van Booven offered repeated verbal assurances, and Mr. DeBin written assurances, that the University had begun the process of identifying and compiling the requested records, and designated the place, time, and earliest date on which to expect the University's response.

The Open Records Act does not prescribe a reasonable time within which access must be afforded to public records. As we have noted, KRS 61.872(5) normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request. OAG 84-300. However, when a request is made for voluminous records, such time limitations are virtually impossible to meet. Although neither Mr. DeBin nor Mr. Van Booven invoked KRS 61.872(6) to authorize nondisclosure of the documents Mr. Jacobs requested, it is apparent that the task of gathering the documents might necessitate a reasonable extension of the three-day period of limitation. However, a delay of some 32 days, which culminates in a virtual blanket denial of the request, suggests an improper disregard for the procedural requirements of the Open Records Act. Accordingly, we find that although the University attempted to comply with the Act by providing an explanation for the delay in releasing the requested records, it violated the Act by unreasonably extending the deadline for 32 days.

In an early opinion, this office recognized:

Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with the provisions of the law . . . . We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection.

OAG 77-151, at page 3. Nevertheless, we have also recognized:

State agencies and employees are the servants of the people as stated in the Preamble to the Open Records Act, but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time.

OAG 76-374, at page 5. We believe that a determination of what is a "reasonable time" for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records. Public agencies must work, in a spirit of cooperation, with individuals who request to inspect their records to insure that those individuals are afforded timely access to the records they wish to inspect.

Mr. Jacobs and the University of Kentucky may chal- lenge 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.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

res/735

Distributed to:

Mr. George DeBin

Official Records Custodian

11 Administration Building

University of Kentucky

Lexington, KY 40506-0032

Hon. William Claiborne Jacobs

The Jacobs Building

173 North Limestone Street

Lexington, KY 40507