Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Bullitt County Public Schools response to Dennis F. Janes's July 9, 1998 open records request for certain records pertaining to his client's former employment with the Bullitt County Public Schools. Specifically, Mr. Janes requested all documents which would establish his client's years of teaching experience in the Bullitt County Public Schools and the amount of sick leave he had accumulated during his employment there.
After receipt of Mr. Janes's letter of appeal, we sent a "Notification to Agency of Open Records Appeal" to the Bullitt County Public Schools. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Eric G. Farris, attorney, on behalf of the school district, provided this office with a response to the issues raised in the appeal. Mr. Farris indicated that, by letter dated July 22, 1998, the school district had notified Mr. Janes that only one document could be found that related to the records he requested and enclosed a copy of that document. Mr. Farris stated that a thorough search had been made through closed records and no other documents had been found. He indicated the school district was continuing its efforts to ascertain his client's sick day totals from other sources.
In a subsequent telephone conversation with the undersigned, Mr. Farris indicated that Mr. Janes's client's personnel file had been either misplaced or lost. He stated that the school district was still trying to obtain the information Mr. Janes sought by other means.
The issue in this appeal is whether the response was consistent with the Open Records Act. For the reasons which follow, we conclude that, although procedurally deficient, the school district's response was substantively consistent with the Act and prior decisions of this office.
KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
As noted above, the school district responded to Mr. Janes's July 9, 1998 open records request on July 22, 1998. To the extent that the school district failed to respond in writing within three business days to Mr. Janes's request, its actions were procedurally deficient and in violation of the requirements of KRS 61.880(1). Procedural requirements are not mere formalities but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125.
Turning to the substantive issue, this office has consistently recognized that a public agency cannot provide a requester access to a record or document which it does not have or which does not exist. 98-ORD-35; 96-ORD-190; 96-ORD-163. The school district advised Mr. Janes that only one document related to his records request could be found and provided him with a copy of that document. It further advised him that it could not provide a copy of other requested records, as they could not be located. Accordingly, we conclude that the school district's response was consistent with the Open Records Act and prior decisions of this office, in that an agency can not provide copies of records it does not have or which do not exist.
Nevertheless, the school district has an obligation relative to proper records management and retention. The loss or misplacement of the personnel file presents a records management issue. KRS 61.8715 provides:
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 . . . [KRS 61.870, et seq., the Kentucky Open Records Act, KRS 171.410 to 171.740, relating to public records management, and KRS 61.940 to 61.959, relating to strategic planning for computerized information systems.]
The General Assembly has thus recognized an "essential relationship" between the intent of the Open Records Act and statutes relating to proper records management and maintenance. KRS 61.8715. With these observations in mind, we have referred this matter to the Department for Libraries and Archives for additional inquiries as the Department deems appropriate
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.