Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Kentucky properly responded to Amita Rastogi's November 29, 1997, open records requests for records relating to her employment status at the University's Medical Center. Dr. Rastogi's November 29 requests supplement her earlier requests to the University, and are based on information and records obtained in these written exchanges. Her requests and the University's responses are summarized below, along with our analysis of the propriety of those responses.
REQUEST ONE
In her November 6, 1997, request, Dr. Rastogi noted that on May 10<th>, 1996, Dr. Glenn issued a letter stating, "It has been determined that we will not act on Dr. Rastogi's request for clinical privileges in the University of Kentucky Hospital at this time." She requested access to the "correspondence which must have been used to justify this decision." The University responded that a decision not to act on a request for clinical privileges need not be supported by written documentation. This office affirmed the University's position on the basis that it could not produce a nonexistent record in 97-ORD-185.
In reviewing the "Bylaws, Rules and Regulations of the Medical Staff" with which the University provided her relative to a separate request, Dr. Rastogi subsequently located a section dealing with applications for medical staff privileges under "Appointment process" Sections 1 and 2. She quoted the relevant portions in her November 29 request:
Section 1:
a. . . . The Chief of Staff shall summarize the findings in the form of a recommendation including a delineation of clinical privileges which shall become part of the application.
Section 2
a. The Clinical Board shall review the completed application and prepare its written recommendation to become a part of the application.
(Emphasis added by Dr. Rastogi.) Based on this language, Dr. Rastogi concluded that "the bylaws require, upon an application for privileges, a written recommendation from the Department Chairman which includes an evaluation of the applicant's abilities." She noted that the bylaws do not allow the chairman to "unilaterally decide (without written justification) not to act on an application for privileges." Dr. Rastogi requested the chairman's " 'written recommendation concerning the applicant which shall include an evaluation of the applicant's abilities to carry out staff responsibilities and a specific delineation of proposed privileges' that is required to be present in [her] files as per University bylaws. " (Emphasis added by Dr. Rastogi.)
Through associate counsel Gay M. Elste, the University reiterated that Dr. Glenn took no action on Dr. Rastogi's request for clinical privileges. She explained:
Had Dr. Glenn chosen to affirmatively or negatively act upon the application, then there would be a writing as anticipated in the Medical Staff Bylaws quoted by Dr. Rastogi. At the time of this application, I concurred in Dr. Glenn's decision to take no action on the application. The Bylaws are silent as to written explanations when no action is taken. According to Dr. Glenn the Cardio-Thoracic Surgery program at the University and the Veterans Affairs Hospital were in transition at the time of Dr. Rastogi's application, and her future at the VA was unknown. Had Dr. Glenn taken action, he would have recommended against her appointment to the Medical Staff. This recommendation, in all probability, would have been upheld. Thereafter, each time Dr. Rastogi applied for medical staff privileges elsewhere, she would have been required to disclose that she had been denied privileges at the University Hospital. Because no action was taken on her application, she is not required to make such a disclosure in future applications for privileges. Dr. Glenn felt that taking no action on her application was in Dr. Rastogi's long term best interests.
It is the opinion of this office that although the University of Kentucky did not violate the Open Records Act in its response to Dr. Rastogi's request since it cannot furnish her with copies of records which do not exist, this appeal raises serious records management issues. We have therefore referred the matter to the Department for Libraries and Archives for review under Chapter 171 or the Kentucky Revised Statutes.
While the Attorney General has traditionally taken the position that a public agency does not violate the Act by denying a request for nonexistent records, we have applied a higher standard of review to denials based on this argument since 1994. In 1994, the Open Records Law was amended to include the following language:
The General Assembly finds an essential relationship between the intent of . . . [the Open Records Act] 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.
KRS 61.8715.
In construing this language, the Attorney General observed:
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:
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 insure efficient and timely action in response to application for inspection.
KRS 61.876(1) (emphasis added). . . .
Until July 15, the State Archives and Records Act, codified at KRS 171.410 to 171.740, tracked a parallel path to that of the Open Records Act. Those paths now converge. Under the provisions of the Archives and Records Act, "the 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 Library and Archives].
. . .
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.
Pursuant to KRS 171.640, it is incumbent on state and local agencies to:
cause to be made and preserved records containing adequate and proper documentation of the organizational functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish information necessary to protect the legal and financial rights of the government and of persons directly affected by the agency's activities. Such documentation shall be created, managed, and preserved in accordance with standards, rules and regulations prescribed by the department under the provisions of KRS 171.410 to 171.740.
This office has expressly held that the failure to create a record does not constitute a violation of the Open Records Act. Thus, in 95-ORD-48, we observed:
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 . . . affirm those principles articulated in OAG 78-231 and subsequent opinions relative to records creation, and conclude . . . 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.
95-ORD-48, p. 4.
As noted, the law assumes that records will be created in accordance with guidelines established by the Department for Libraries and Archives under Chapter 171. Although the Attorney General is not empowered to address the issue of records creation, the Department clearly is. Because the "Bylaws, Rules and Regulations of the Medical Staff" seem to indicate that the University lacked discretion to fail to create a record relative to Dr. Rastogi's application for clinical privileges, and because such a record may be in the nature of "adequate and proper documentation . . . designed to furnish information necessary to protect the legal and financial rights of . . . persons directly affected by the agency's activities," we have referred this matter to the Department for Libraries and Archives for a determination whether additional inquiries are warranted under KRS 171.640.
Ultimately, of course, we cannot afford Dr. Rastogi the relief she seeks, namely access to written recommendations relating to her ability to carry out staff responsibilities and a delineation of proposed privileges. We cannot direct the disclosure of records which were not created. Rather, it is in the State Archives and Record Act that Dr. Rastogi's remedies lie.
REQUEST TWO
In her November 29 request, Dr. Rastogi also asked for letters or documents that preceded Dr. Glenn's May 10, 1996, memorandum requesting brief letters from her colleagues indicating that she should not be reappointed to the faculty and that were used by Dr. Glenn as the basis for this action. She noted that Dr. Glenn himself "had no personal knowledge of [her] work." The University responded that Dr. Rastogi had already been furnished with "all letters available to Dr. Glenn prior to his request for letters from members of the faculty of the Department of Surgery. " In response to her observation that he had no personal knowledge of her work, the University stated:
Dr. Glenn had become the Acting Department of Surgery Chairman in February, 1996. Prior to his service as Chairman of that department, he had served as the Hospital Chief of Staff, until the arrival of Christian Ramsey, M.D. in November, 1994. In addition, even prior to becoming acting chairman of the Department of Surgery, Dr. Glenn had been asked by Dean Wilson to assist with other issues pertaining to Cardio-Thoracic Surgery. While it is true that he had only been in his Acting Chair role since approximately February, 1996, he was fully aware of Dr. Rastogi's role within the Department of Surgery and the Veterans Affairs Medical Center.
Although she did not specifically identify them, Dr. Rastogi indicated that "a number of University bylaws indicate that such action [,namely terminal reappointment, ] requires (1) consultations with faculty, and (2) the written judgment of each faculty member consulted." Continuing, she observed that "no records have been provided that indicate that consultations were held or that a written judgment of faculty was sought prior to . . . [Dr. Glenn's solicitation for letters supporting Dr. Rastogi's terminal reappointment] ."
Based on the authorities cited above, we find that the absence of documentation reflecting the judgment of faculty members consulted prior to Dr. Glenn's decision to recommend Dr. Rastogi's terminal reappointment also raises records management issues since University bylaws apparently require written documentation. Such issues, as noted, are not capable of resolution under the Open Records Act, but may properly be addressed by the Department for Libraries and Archives. Thus, while we do not find that the University's failure to create records supporting Dr. Rastogi's terminal reappointment constitutes a violation of the Act, we refer this issue to the Department for additional inquiries as warranted.
REQUEST THREE
Dr. Rastogi next requested all available records relating to her "held by Dr. Ramsey's office (Chief of Staff) ." The University responded that "every document maintained by Dr. Ramsey's Office has previously been made available to Dr. Rastogi." Ms. Elste explained that these documents consist of "six pages, including interview notes prepared by Dr. Kevin Nelson following Dr. Rastogi's unauthorized participation in a surgery at the University Hospital in October, 1996."
The basis for the University's response, in this instance, is that all records relating to Dr. Rastogi and maintained in Dr. Ramsey's office have been released to her. Dr. Rastogi offers no additional information to support her request for the same records; nor does she direct us to any authority which suggests that additional records must be maintained in the Chief of Staff's office. As we noted in 97-ORD-185, the University is not obligated to honor a duplicative request for records in the absence of some justification for resubmitting the request. See also, 95-ORD-47; 95-ORD-105. And, as we have so often noted, the University cannot produce records which do not exist. We therefore affirm the University's denial of this request.
REQEUST FOUR
Finally, Dr. Rastogi requested records, and in particular, the University's written response, to her pending EEOC complaint against the University of Kentucky. She explained that the University was required to send its response to the Charge of Discrimination by August 15, 1997. This response would have included a position statement on each of the allegations, documentary evidence and/or written statements, reasons for discharge, persons recommending discharge, evaluation and investigation reports, discharge procedures, and "other materials." The University responded that its Affirmative Action Office "has not yet filed its written position statement with the EEOC," and that the entire file has been made available to her.
Without explanation, the University concedes that it failed to meet the August 15 deadline for filing its response to Dr. Rastogi's EEOC complaint. Accordingly, no records exist which satisfy her fourth request. While federal law apparently assumes the timely creation of such a record, it is unclear whether state law applies. For this reason, it is unclear whether the Department for Libraries and Archives has authority to address this records management issue. What is clear is that no relief is available to Dr. Rastogi relative to the University's denial of this request under the Open Records Law. We refer this issue to the Department for additional inquiry as its jurisdiction permits.
CONCLUSION
In a recent open records decision issued to these parties, the Attorney General recognized that a number of issues which Dr. Rastogi raised are "largely incapable of resolution under the Open Records Act. " Nevertheless, and as we have noted, pursuant to KRS 61.8715, the Attorney General may, upon presentation of unrebutted evidence of inadequate records management, refer an appeal to the Department for Libraries and Archives for review under Chapter 171 of the Kentucky Revised Statutes.
In the appeal before us, Dr. Rastogi has presented such evidence in three of her four requests. By referring this matter to Libraries and Archives, we acknowledge the narrow limits of our role under the Open Records Act. For purposes of the Act, the University's conduct cannot be said to constitute a violation. It is for the Department for Libraries and Archives to resolve the issue of proper records management.
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.