NOT TO BE PUBLISHED











97-ORD-82

May 20, 1997







In re: Kenneth Sewell/Kentucky Parole Board



Open Records Decision



The question presented in this appeal is whether the Kentucky Parole Board violated provisions of the Open Records Act in responding to Kenneth Sewell's April 15, 1997, request for taped copies of his January 16, 1997, and February 14, 1997, parole hearings. Having received no response to his request, on April 22 Mr. Sewell initiated this open records appeal. In response to the notification of appeal issued by this office on April 25, Linda F. Frank, Parole Board Chair, advised us that on April 30 a taped copy of Mr. Sewell's second parole hearing was mailed to him. She indicated that the Board could not comply with his request for a taped copy of his January 16 hearing because the original tape has been misplaced. Ms. Frank stated that the second tape would be sent to Mr. Sewell when, and if, it is located.

We find that the Kentucky Parole Board's response was procedurally deficient. We further find that although the Board did not violate the Open Records Act in failing to send Mr. Sewell a copy of his January 16 parole hearing, since it cannot provide copies of records which have been misplaced, its apparent failure to adequately safeguard its records may constitute a violation of Chapter 171 of the Kentucky Revised Statutes relating to records management.

We begin by noting that the Parole Board's response was untimely. KRS 61.880(1) contains guidelines for agency response to an open records request, and requires that the response must be in writing and issued within three business days of receipt of the request. Mr. Sewell's request was submitted on April 15. The Parole Board responded on April 30. Thus, ten business days elapsed between the date of his request and the date of the Board's response. Ms. Frank indicates that "this communication breakdown is being addressed internally." We encourage the Parole Board to review the cited provision to insure that future responses conform to the Open Records Act.

"To provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of" the Open Records Act, KRS 61.870 to 61.880, the State Archives and Records Act, KRS 171.410 to 171.740, and the Information Systems Act, KRS 61.940 to 61.957. KRS 61.8715. The General Assembly has recognized that there is an "essential relationship" between these statutes. Id.

In 94-ORD-121 this office analyzed the language of KRS 61.8715 in considerable depth. There we observed:

The "basic policy" of the Open Records Act, recognized by Kentucky's courts, and until recently 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). To this end, an agency must adopt rules and regulations which conform to 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 ensure efficient and timely action in response to application for inspection.

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;

(b) Cooperation with the department in applying standards, procedures, and techniques designed to improve the management of records;

(c) Promotion of the maintenance and security of records deemed appropriate for preservation, and facilitation of the segregation and disposal of records of temporary value;

(d) Compliance with the provisions of KRS 171.410 to 171.740 and the rules and regulations of the department [for Libraries and Archives].

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 171.1740." 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 cannot be located. 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 disappeared. 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 disappearance, of the requested records.

While we do not find, as a matter of law, that the Board violated the Open Records Act by failing to afford Mr. Sewell access to the requested record, that record having apparently been misplaced, we do find that the Board 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 Kentucky Parole Board violated the 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.

Clearly, the Parole Board has recognized, and is attempting to correct, its error. Should the board succeed in locating the tape of Mr. Sewell's January hearing and send him a copy, the narrow open records issues presented by this appeal will be satisfactorily resolved. It is for the Department for Libraries and Archives to determine if additional inquiries are warranted under Chapter 171 of the Kentucky Revised Statutes. 

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





Amye L. Bensenhaver

Assistant Attorney General

#461

Distributed to:

Kenneth Sewell #123264

Northpoint Training Center

P. O. Box 479 Dorm 2

Burgin KY 40310

Linda Frank, Chair

Kentucky Parole Board

5th Floor

State Office Building

Frankfort KY 40601

Richard Belding, Director

Public Records Division

Department of Libraries and Archives

300 Coffee Tree Road

Frankfort KY 40601