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 is before the Attorney General on appeal from the responses of the Cabinet for Public Protection and Regulation to Micah G. Guilfoil's open records requests of March 24, 1999 and March 30, 1999.
On March 24, 1999, Ms. Guilfoil requested a copy of "any and all memoranda to, from and between Secretary Laura Douglas and Hazel Oaks, regarding 'flextime' policies or flextime of any employee in the Public Protection Cabinet."
By letter dated March 26, 1999, Susan Klimchak, Director of Communications, responded to the request on behalf of the Cabinet. In her response, Ms. Klimchak advised Ms. Guilfoil that she had not precisely described public records which are readily available within the public agency as required by KRS 61.872(3)(b). She further stated:
Former Secretary Douglas is no longer a state employee. I find no indication that Hazel Oaks is currently a state employee. Former Secretary Douglas' secretary was asked whether or not she has any recollection of the existence of any such requested memoranda. She has no recollection of receiving or preparing such a memorandum.
On March 30, 1999, Ms. Guilfoil renewed her request by asking for copies of:
any and all memorandum regarding the existence of "flextime" or flextime status of any employee in the Cabinet, including but not limited to the Department of Insurance, between then Secretary Laura Douglas and employee Hazel S. Oaks, of the Department of Insurance. The relevant dates for the records are January 1996 through March 1999 or the last day of Ms. Oaks' employment with the Department of Insurance, which ever is first.
Ms. Guilfoil indicated that she was aware that Secretary Douglas and Ms. Oaks were no longer employed with the Cabinet, but maintained the requested memorandum continued to be public records in possession of the Cabinet regardless of the fact that neither the sender nor receiver of the records are current employees of the Cabinet.
By letter dated April 1, 1999, Joseph W. O'Reilly, General Counsel, responded on behalf of the Cabinet. Mr. O'Reilly advised:
Neither former Secretary Douglas' secretary nor the person in charge of personnel for the Cabinet has any recollection of any such memo. To require the Cabinet to inspect each document created and saved during this lengthy period [between January 1996 and March 1999] would impose an unreasonable burden on the Cabinet precluded by KRS 61.872(6).
In her letter of appeal, Ms. Guilfoil asks this office to review the Cabinet's responses and further states that she has received information that the requested documents exist.
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. O'Reilly, provided this office with a response, on behalf of the Cabinet, to the issues raised in the letter of appeal. In his response, Mr. O'Reilly reiterated the Cabinet's previous responses; stated that the agency had no knowledge of or retention of such records; and submitted the appeal should be denied based upon the provisions of KRS 61.872(3)(b) and (6). He further stated that if Ms. Guilfoil had information as to where the records existed within the Cabinet, as she had indicated, or when they were specifically created, she had not shared that information with the Cabinet.
We are asked to determine whether the responses of the Cabinet are consistent with the Open Records Act. For the reasons that follow, we conclude that the responses were proper and in accord with the Act and prior decisions of this office.
The Attorney General has consistently held that a public agency cannot afford a requester access to records which do not exist or cannot be located. OAG 83-111; OAG 87-54; OAG 91-112; 93-ORD-95; 93-ORD-134; 94-ORD-142; 96-ORD-88; 99-ORD-4. As we observed at page 5 of OAG 86-35:
This office is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the person seeking to inspect such documents.
However, since July 1994, when the Open Records Act was substantially amended, we have applied a higher standard of review to denials based on the nonexistence 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 records.
In our view, the Cabinet provides sufficient proof that it conducted a search which could be reasonably calculated to locate records responsive to Ms. Guilfoil's initial request, but that the search was nonproductive. The Cabinet asked former Secretary Douglas' secretary whether she had any recollection of any memoranda to, from, or between Secretary Douglas and Hazel Oaks regarding flextime policies. The secretary indicated that she had no recollection of receiving or preparing such a memorandum. In addition, the Cabinet indicated that it had made the same inquiry of the person in charge of personnel for the Cabinet, who also had no recollection of the memorandum.
Despite the fact that it yielded no results, this was a search method which could have reasonably been expected to produce the records requested. 95-ORD-96, p. 7. As long as the Cabinet, or any other public agency, establishes that it employed a search method which could reasonably be expected to produce the records requested, this office will find no error. 98-ORD-83. Accordingly, we find no error in the Cabinet's responses that it could not provide the requested records on the basis that it did not have the records or they could not be located.
In its initial response, the Cabinet stated that Ms. Guilfoil had not precisely described public records which are readily available within the public agency, as required by KRS 61.872(3)(b), in order to get copies of public records. We find that Ms. Guilfoil's description, although not precise as to date and other identifying information, was sufficiently specific and of an identified, limited class, i.e., " any and all memoranda to, from and between Secretary Laura Douglas and Hazel Oaks , regarding 'flextime' policies or flextime of any employee in the Public Protection Cabinet," to enable the Cabinet to use a search method reasonably expected to produce the records. (Emphasis added.) As noted above, it produced no results that the records existed or could be located.
In her second request, Ms. Guilfoil asked that the Cabinet provide her with copies of:
any and all memorandum regarding the existence of "flextime" or flextime status of any employee in the Cabinet , including but not limited to the Department of Insurance, between then Secretary Laura Douglas and employee Hazel S. Oaks, of the Department of Insurance. The relevant dates for the records are January 1996 through March 1999 or the last day of Ms. Oaks' employment with the Department of Insurance, which ever is first.
(Emphasis added.)
The Cabinet denied this expanded request. Citing KRS 61.872(6), the Cabinet explained that to require it to inspect every document created and saved by the Cabinet between the period of January 1996 and March 1999, would impose an unreasonable burden on the Cabinet. We agree.
KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
In construing this provision, the Attorney General has observed:
The purpose and intent of the Open Records Act is to permit "the free and open examination of public records. " KRS 61.[871]. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review. OAG 89-81. Where the records sought are of an identified, limited class, the request satisfies this condition. If an agency then invokes KRS 61.872(6) to authorize nondisclosure of the requested records, it bears the burden of establishing, by clear and convincing evidence, that the request places an unreasonable burden in producing voluminous public records.
92-ORD-1261, p. 3.
In 99-ORD-14, we held that a request for copies of all Revenue Cabinet records relating to the requester or containing her name for a four year period, which did not identify the records with "reasonable particularity, " and which were not of an identified, limited class, imposed an unreasonable burden on the agency. In affirming the Revenue Cabinet's partial denial of the request, we stated:
It is our view that a request for any and all records which contain a name, a term, or a phrase is not a properly framed open records request, and that it generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records.
In the instant case, the Cabinet indicates that in order to comply with the expanded request, it would be required to review each and every record created and retained by the Cabinet for over a three year period to determine if any of its records fell with the described requested records.
Under these facts, we conclude that, in the absence of a more specifically described records request, the Cabinet should not be required to conduct an exhaustive exhumation of records or embark on an unproductive fishing expedition in order to satisfy a nonspecific request. As framed, Ms. Guilfoil's expanded request imposes an unreasonable burden on the Cabinet. KRS 61.872(6). We therefore affirm the Cabinet's denial of Ms. Guilfoil's request for "any and all memorandum regarding the existence of 'flextime' or flextime status of any employee in the Cabinet," from January 1996 through March 1999. We encourage Ms. Guilfoil and the Cabinet to work toward an amicable resolution of this dispute - Ms. Guilfoil by framing her request more narrowly, and the Cabinet by working with her in a spirit of cooperation.
Ms. Guilfoil maintains that she has received information that the requested documents exist. If she, in fact, has additional information which would assist the Cabinet in identifying and locating the records she seeks, she should provide that information to the agency.
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.