NOT TO BE PUBLISHED
95-ORD-45
March 22, 1995
In re: Davy Jones/University of Kentucky
OPEN RECORDS DECISION
This appeal originated in the submission of a request to inspect public records submitted by Mr. Davy Jones, a professor of toxicology at the University of Kentucky, to the University's custodian of records, Mr. Donald B. Clapp. [1] Those records are identified as:
[T]he [evaluation] forms submitted by each of the faculty members of the [graduate program] committee concerning Ana Soldevila [relative to her applications for acceptance into the graduate program in entomology and a research assistantship].
Mr. Clapp denied Mr. Jones's request, advising him that "the requested forms are not retained once the summary is completed, therefore the requested items do not exist."
In his multipage appeal, Mr. Jones once again attempts to secure an open records decision declaring that the University's denial of his request based on the nonexistence of the records constitutes a violation of the Open Records Act. This subject having been analyzed in depth on numerous occasions in the past, we are loath to oblige. Nevertheless, in the interest, and hope, of resolving this issue once and for all, we will proceed to an adjudication of this matter.
Although Mr. Jones's letter of appeal reflects hours of painstaking research and labor, we are concerned with a single document, to wit "Exhibit D," which contains the substance of his request and the University's response. This is the only document which is needed to identify the issue in this appeal. In our view, that issue is whether the University violated the Open Records Act in denying Mr. Jones's request for evaluation forms pertaining to one of his students on the grounds that those records were destroyed and therefore do not exist. For the reasons set forth below, and based on a line of authorities predating the 1994 amendments to the Act, we conclude that the University's actions did not constitute a violation.
The facts which give rise to this appeal occurred prior to the enactment of the 1994 amendments to the Open Records Act. Accordingly, those amendments, to the extent that they might otherwise have some bearing on the outcome of this appeal, cannot be factored into our analysis. Instead, we must review the University's action under the pre-July, 1994 Act. As Mr. Jones acknowledges at page 7 of his appeal, this office has long recognized that a public agency cannot afford a requester access to records which do not exist or which have been lost or destroyed. See, e.g., OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203. Nor is it our duty to investigate in order to locate documents which do not exist or have been lost or destroyed. [2] "This office is a reviewer of the course of action taken by a public agency and not a finder of documents .Ê.Ê.Ê for the party seeking to inspect such documents." OAG 86-35, p. 5.
It is Mr. Jones's position that he only asks the Attorney General to review the course of action taken by the University in attempting to locate and retrieve any extant copies of the evaluation forms relating to Ms. Soldevila's applications. He notes that this office is empowered, pursuant to KRS 61.880(2), [3] to request additional documentation from the public agency "for substantiation," and suggests that we solicit an explanation from the University relative to its efforts. Mr. Jones strongly intimates that copies of the evaluations may still be retained by members of the committee, a likelihood that he characterizes as "very, very (that is VERY) high."
Based on the pre-July 15, 1994, Open Records Act, we conclude that because the University could not provide access to nonexistent records, i.e., records which were destroyed when the evaluation summary was completed, its response that the requested record did not exist was proper. We decline Mr. Jones's invitation to declare that the University's failure to search for extant copies of the records which might be in the hands of committee members constitutes a violation of the Open Records Act. We do not address the adequacy of the search. It is, however, unlikely that we would reach the same conclusion under the amended law. In a line of recent decisions, this office has put the University on notice that it will apply a higher standard of review relative to denials based on the loss or destruction of requested records. See, e.g., 94-ORD-73. We strongly urge the University to bear these observations in mind in responding to future requests.
Mr. Jones 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.
CHRIS GORMAN
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
ABM/res/681
Distributed to:
Mr. George DeBin
Official Records Custodian
11 Administration Building
University of Kentucky
Lexington, KY 40506-0032
Mr. Davy Jones
204 Funkhauser Bldg.
University of Kentucky
Lexington, KY 40506
[1]Mr. George DeBin assumed the duties of records custodian at the University in July, 1994.
[2]As noted, this decision is rendered under the Open Records Act as it existed prior to July, 1994. Since July 15, 1994, this office has 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 under the amended Act, a public agency must, at a minimum, document what efforts were made to locate the missing records. Thus, at page 7 of 94-ORD-156 we observed, "The loss or destruction of a public record creates a presumption of records mismanagement, but this presumption is rebuttable." If a public agency fails to offer any explanation for the loss or destruction of the disputed records, it fails to overcome the presumption.
[3]Now codified as KRS 61.880(2)(c).