NOT TO BE PUBLISHED
97-ORD-95
June 16, 1997
In re: Dorothy Lee/Natural Resources and Environmental
Protection Cabinet
Open Records Decision
This matter comes to the Attorney General on appeal from the
actions of the Underground Storage Tank Branch, Division of Waste
Management, Natural Resources and Environmental Protection
Cabinet, in response to Ms. Dorothy Lee's open records request to
inspect a copy of an Underground Storage Tank Site Investigation
Report, made by Mr. Kip Groce on April 7, 1997, concerning an
underground storage tank located at the Old Olive Hill Elementary
School, in Olive Hill, Kentucky.
In her letter of appeal, dated May 22, 1997, Ms. Lee stated
that she had received no response to her request.
On May 19, 1997, we sent a "Notification of Receipt of
Open Records Appeal" to the Office of Legal Services,
Natural Resources and Environmental Protection Cabinet, and
enclosed a copy of Ms. Lee's letter of appeal. As authorized by
KRS 61.880(2) and 40 KAR 1:030, Section 2, by letter dated May
22, 1997, Bryon Alan Thompson, Esq., Office of Legal Services
with the Cabinet, provided this office with a response to the
issues raised in the appeal. In his response, Mr. Thompson
stated:
Ms. Lee is welcome to have a copy of the report she requested.
The Cabinet intends to comply with her request but is unable to
do so at this time. The document requested is what the Cabinet
terms an "Underground Storage Tank Site Investigative
Report." The Cabinet agrees that Mr. Groce investigated the
site that day and did compile the report. After investigation the
Cabinet has concluded at this time that the report has been lost,
misfiled or misplaced in the Regional Office. The Cabinet is
reviewing the files of other matters that were handled on that
day and is generally searching the office with the expectation
that the report will be found. In the event that the report
cannot be located, Mr. Groce will prepare another
"Underground Storage Tank Site Investigative Report"
for this inspection, and Ms. Lee is welcome to have a copy of it.
The Cabinet would request a reasonable time to search for this
report or otherwise compile another "Underground Storage
Tank Site Investigative Report." If I can be of any further
assistance in resolving this matter, please do not hesitate to
contact me.
We are asked to determine if the Cabinet's actions were
consistent with provisions of the Open Records Act. For the
reasons which follow, we conclude that the Cabinet's failure to
respond to Ms. Lee's request in writing within three business
days after receipt of the request, as required by KRS 61.880(1),
was a procedural violation of the Act. We further find that the
Cabinet did not violate the Open Records Act, insofar as it could
not make available a record which has been lost, misplaced, or no
longer exists, as this office has long recognized that a public
agency cannot afford a requester access to records which do not
exist or have been destroyed. See, e.g., OAG 83-11; OAG 91-203;
97-ORD-82.
However the Cabinet's failure to adequately manage its records
so that they can be retrieved and made available to the public
constitutes a subversion of the intent of the Act, and may also
constitute a violation of Chapter 171 of the Kentucky Revised
Statutes relating to the management of public records.
KRS 61.8715 provides:
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.
In construing this provision, the Attorney General, in
94-ORD-121, p. 10, formally observed:
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.
Based on this analysis, in 94-ORD-141, we concluded that the
loss or destruction of a public record creates a rebuttable
presumption of records mismanagement. We have also recognized
that it is not our duty to investigate in order to locate
documents which do not exist or have been 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
nonexistence, or here the loss, of the requested record. 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 record. Because the Cabinet failed to provide an
explanation for the loss of the requested record, we are
compelled to conclude that the Cabinet 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 Cabinet failed to overcome the
presumption because it offered no explanation for the loss of the
requested record.
While we do not find, as a matter of law, that the Cabinet
violated the Open Records Act by failing to afford Ms. Lee access
to the requested record, that record having been lost, we do find
that the Cabinet subverted the intent of the Act by failing to
establish effective controls over the creation, maintenance, and
use of its records to ensure against the loss of a public record,
thus frustrating full access to its records. 94-ORD-141, p. 5.
We do recognize that the Cabinet went further than the Open
Records Act requires by creating another "Underground
Storage Tank Site Report" of the April 7, 1997 inspection in
an attempt to mitigate its loss of the requested record. However,
its failure to adequately maintain the original record denied Ms.
Lee full access to public records.
Accordingly, we have referred this matter to the Department
for Libraries and Archives, Public Records, for a determination
of whether the Cabinet violated 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.
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
James M. Ringo
Assistant Attorney General
#563
Distributed to:
Dorothy Lee
P.O. Box 124
Olive Hill KY 41164
Glenna Jo Curry
Office of Legal Services
Natural Resources and Environmental
Protection Cabinet
5th Floor, Capital Plaza Tower
Frankfort KY 40601