TO BE PUBLISHED
95-ORD-48
March 22, 1995
In re: James W. Hendrix/University of Kentucky
OPEN RECORDS DECISION
This appeal originated in the submission of a request to inspect and copy public records by Mr. James W. Hendrix, Professor of Plant Pathology at the University of Kentucky, to the University's records custodian, Mr. George DeBin, on December 2, 1994. In his request, Mr. Hendrix referenced a July 14, 1994, policy directive [1] from Mr. James Nelson, State Librarian and Commissioner of the Department for Libraries and Archives. In Mr. Hendrix's view, this directive "instructed that the Archives and Records law requires that minutes or other similar records of meetings of the President's cabinet or similar body be created and preserved." Mr. Hendrix indicated that following the University's receipt of this "directive," Mr. Davy Jones, another faculty member, submitted an open records request for the minutes of the most recent meeting of the President's cabinet, and that Mr. Jones's request was denied. Mr. Hendrix requested:
1) a copy of [Mr. DeBin's] response to Professor Jones that no record existed documenting the occurrence of that meeting, and
2) the record created, pursuant to the Archives and Records law (KRS 171.640) and directive from Mr. Nelson, that documents the occurrence of the same meeting as identified in Professor Jones's request.
Simply stated, Mr. Hendrix requested the same record which Mr. Jones was earlier told did not exist.
In a response dated December 7, 1994, Mr. DeBin advised Mr. Hendrix that there is no statute requiring the creation of minutes of meetings of the President's cabinet, which he refers to as the President's "staff." Mr. DeBin argued that neither the Archives and Records Act, at KRS 171.640, nor the Open Meetings Act, at KRS 61.835, mandate the creation of minutes. Relying on 94-ORD-141, he asserted that since the University cannot make available records which do not exist, Mr. Hendrix's request was denied. He did, however, produce for Mr. Hendrix's inspection a copy of the University's response to Mr. Jones's earlier open records request.
We are asked to determine if the University of Kentucky subverted the intent of the Open Records Act, as well as the intent of the State Archives and Records Act, in failing to generate minutes of the meetings of the President's cabinet, and thus frustrating access to public records. For the reasons set forth below, we conclude that this issue is not cognizable under the Open Records Act. Until such time as it is determined that the President's cabinet is a public agency, within the meaning of KRS 61.805(2), and is thus required under KRS 61.835 to record minutes of actions taken at its meetings, this question is not ripe for review.
This office has long recognized that the Open Records Act does not empower the Attorney General to order the creation of records. Nor does the Act require agencies to create records. See, e.g., OAG 78-231; OAG 79-547; OAG 80-308; OAG 82-234; OAG 83-111; OAG 89-32; OAG 89-66. Recent amendments to the Act compel us to reexamine this position.
The Open Records Act was substantially amended by the General Assembly in 1994. Fundamental to these amendments is the recognition that an "essential relationship" exists between the intent of KRS 61.870 to 61.884, dealing with open records of public agencies, KRS 171.410 to 171.740, dealing with the management of public records, and KRS 61.940 to 61.957, dealing with coordination of strategic planning for computerized information systems in state government. KRS 61.8715. This office has characterized the introduction of this language as a "watershed in the evolution of the Open Records Law." 94-ORD-121, p. 8. In that decision, we reasoned:
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. In other words, the key to records access is effective records management.
KRS 61.8715 provides, in full:
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.
(Emphasis added.) It is abundantly clear that the shared intent contemplated by the legislature in enacting KRS 61.8715 is confined to records management and maintenance. There is no reference in the statute to records creation. We decline the invitation to invade the prerogative of public agencies in determining, "in accordance with standards, rules and regulations prescribed by the Department for Libraries and Archives," what records they must create. KRS 171.640. We therefore affirm those principles articulated in OAG 78-231 and subsequent opinions relative to records creation, and conclude that, KRS 61.8715 notwithstanding, the Attorney General is not empowered to order an agency to create records, or to declare its failure to do so a subversion of the intent of the Open Records Act. To the extent that any recent decisions construing this provision leave this question unresolved, this decision is intended to be conclusive.
Our analysis does not, however, end here. It is the opinion of this office that the question Mr. Hendrix raises is, in fact, an open meeting question. He asks whether the failure of the President's cabinet to generate minutes of its meetings violates, or otherwise subverts, the intent of the Open Records Act. The threshold issue, in our view, is whether the President's cabinet is a "public agency" for purposes of the Open Meetings Act, and thus required to record minutes of actions taken at its meetings pursuant to KRS 61.835. This issue has not, however, been properly presented to this office, and is therefore not ripe for adjudication.
Persons seeking enforcement of the Open Meetings Act must first submit a written complaint to the presiding officer of the public agency suspected of violating the Act. KRS 61.846. The complaint must state the circumstances which constitute the alleged violation, and must state what the public agency should do to remedy the alleged violation.
The public agency is required to respond in writing within three business days after the receipt of the complaint, and notify the complaining party of its decision. An agency's response denying the complaint's requirements for remedying the alleged violation must include a statement of the specific statute or statutes supporting the public agency's denial and how that statute or statutes apply to the specific situation at hand.
If the complaining party wishes the Attorney General to review the public agency's denial, the complaining party must send the Attorney General a copy of his written complaint, and a copy of the written denial, within 60 days from the receipt by the complaining party of that written denial by the public agency. If the public agency refuses to provide a written denial, the complaining party must provide a copy of the written complaint to the Attorney General within 60 days from the date the written complaint was submitted to the presiding officer of the public agency. In his letter to the Attorney General the complaining party must include a written statement as to how the public agency failed to remedy the alleged violation.
Mr. Hendrix must follow the procedures outlined above and send this office the required documents before we can treat the matter as an appeal under the Open Meetings Act and proceed to issue a decision.
Mr. Hendrix 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
res/1699
Distributed to:
Mr. George DeBin
Official Records Custodian
11 Administration Building
University of Kentucky
Lexington, KY 40506-0032
Mr. James W. Hendrix
Professor, College of Agriculture
University of Kentucky
S-305 Agricultural Science Building - North
Lexington, KY 40546-0091
[1]This is Mr. Hendrix's characterization of the communication, and not ours.