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 Louisville violated the Open Records Act in its handling of Theresa Hahn's request for a record not disclosed to her following issuance of this office's decision in 98-ORD-161, and in its apparent failure to display rules and regulations governing access to its records in a prominent location accessible to the public. On the latter issue, we find that, in the absence of evidence to the contrary, the University's failure to display rules and regulations constitutes a violation of KRS 61.876(1) and (2). On the issue of its failure to produce the record which was responsive to Ms. Hahn's second request, we find that the University did not violate the Act, insofar as it cannot produce a record that has disappeared or no longer exists, but that its failure to adequately safeguard and manage its records, so that those records can be retrieved and made available for inspection, 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 management of public records.
On October 9, 1998, this office issued 98-ORD-161 in which we held that the University's failure to afford Ms. Hahn timely access to her active employment application materials, and other procedural irregularities associated with its response, constituted a violation of the Open Records Act. The University was directed to immediately furnish Ms. Hahn with the materials or, alternatively, to challenge the decision in the appropriate circuit court pursuant to KRS 61.880(5). The University did not challenge this decision.
After reviewing her application materials, Ms. Hahn became aware that certain documents had apparently been omitted, including a certified letter to Carrider Jones, manager of the Office of Employment Services, in which Ms. Hahn inquired about her application for employment. 1 On October 21, Ms. Hahn submitted a written request to the University for this document. Shortly thereafter, the University responded that Ms. Jones did not receive a certified letter from Ms. Hahn relating to her application for employment. The only letter Ms. Jones received from Ms. Hahn, the University maintained, was her September 1, 1998, open records request with which she had already been furnished a copy. Having unsuccessfully attempted to secure access to the record, Ms. Hahn initiated this appeal, appending copies of the domestic return receipt, signed by University postal clerk Allison Cheser, and written verification from the United States Postal Service that the letter was delivered to Ms. Jones's clerical specialist, Susan Dowdy, in the Office of Employment Services.
In its response to Ms. Hahn's appeal, the University acknowledges that the letter "may have been received by someone in Ms. Jones' area," but asserts that "Ms. Jones has no recollection herself of having received it." In support, the University appends the affidavits of Sandra Fortner, senior employment representative, and Carrider Jones, both of whom state that the files have been searched, and the letter "does not appear in the files." The University denies any wrongdoing, arguing that:
The loss or misplacing of a letter may be somewhat embarrassing and indicate a need for additional precautions in how mail is handled [,but] there is no evidence of any deliberate action to withhold any document from Ms. Hahn.
The University urges this office to dismiss Ms. Hahn's appeal since "the document which Ms. Hahn claims is in the University's possession simply cannot be found," and the allegations concerning its failure to display rules and regulations "appear to be unrelated to the Appeal."
While we concur with the University in its view that it cannot afford Ms. Hahn access to a record which was lost or does not exist, we do not share its view that this ends the inquiry. Rather, we believe that this appeal raises records management issues. We have therefore referred the matter to the Department for Libraries and Archives for review under Chapter 171 of the Kentucky Revised Statutes.
The University does not maintain that the requested record is not a public record for purposes of the Open Records Act. Nor does the University rely on any of the exceptions to the Open Records Act, codified at KRS 61.878(1)(a) through (1), in denying the request. Instead, the University states that the letter was lost or misplaced, and is therefore not available for inspection.
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. See, e.g., 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. 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 records. Because the University of Louisville failed to provide an explanation for the loss of the requested records, we are compelled to conclude that the University failed to adequately manage its records. The loss of a public record creates a rebuttable presumption of records mismanagement. Here, however, the University has acknowledged that mismanagement with respect to this record did occur. We strongly endorse the University's decision to implement additional safeguards in the processing of mail, and encourage it to undertake a reexamination of University-wide open records and records management policies to insure future compliance with the Open Records Act and the State Archives and Records Act.
We do not find, as a matter of law, that the University violated the Open Records Act by failing to afford Ms. Hahn access to the requested record, that record having apparently disappeared. We do find that the University subverted the intent of the Act by failing to establish effective controls over the creation, maintenance, and use of that record, 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 University of Louisville 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.
Ultimately, of course, we cannot afford Ms. Hahn the relief she seeks, namely access to the certified letter she sent to Ms. Jones in June, 1998, which related to her application for employment. Because this letter has disappeared, Ms. Hahn's remedies lie in the State Archives and Records Act.
We turn now to the issue of the University's failure to comply with KRS 61.876(1) and (2). Those statutes provide:
(1) Each public agency shall adopt rules and regulations in conformity with 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, and such rules and regulations shall include, but shall not be limited to:
(2) Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public.
The Attorney General has long recognized that these provisions are:
aimed at insuring that each agency will educate the public on its particular policies and practices relative to open records. Simply stated, the rules and regulations contemplated by KRS 61.876 are a "how-to" for persons who wish to submit an open records request. [Footnote omitted.]. . . . [Public agencies] must adopt rules and regulations pertaining to [their] open records polic[ies], or [they] may adapt the uniform rules and regulations promulgated by the Finance and Administration Cabinet to [their] particular needs. [They] must post these rules and regulations in a prominent location accessible to the public with the goal of broadly disseminating them. . . .
94-ORD-12, pp. 6-8. In OAG 78-340, this office held that KRS 61.876 requires each public agency to adopt rules pertaining to public records, and failure to do so constitutes a violation of the Open Records Act. See also, 92-ORD-1567; 93-ORD-83; 94-ORD-12; 95-ORD-49. As these decisions demonstrate, this is an issue which may properly be presented to the Attorney General for dispute resolution under KRS 61.880(2).
The spirit of the Act mandates the broadest possible dissemination of an agency's rules and regulations, although the letter of the law does not specifically designate where the rules must be posted. At a minimum, they must be posted in the office of the University's custodian of records. We urge the University to undertake an immediate review of its policy relative to KRS 61.876 to insure conformity with the Open Records Act.
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.
Footnotes
Footnotes