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 complied with the Open Records Act in responding to a series of records requests submitted by William Jacobs which relate to University employees and the University's records retention schedule. At issue is the adequacy of the University's search and of its responses to Mr. Jacobs's requests. Based on our review of the University's responses, and supporting documentation, we find that the University's actions did not constitute violations of the Open Records Act. We address each of the requests made, and the adequacy of the University's responses.
1. "For each current chief University administrative officer occupying each of the offices [which appear on the official organizational chart showing the University offices that report directly to the office of the University President], the documents describing the duties of each office issued incident to the search to hire each individual [such as job announcements] , and each document describing the duties of each office provided to each individual hired to fill each office."
In its September 18, 1998, response to this September 11 request, the University advised Mr. Jacobs that the University could not produce these records. Records custodian George J. DeBin explained:
Advertisements relating to any of the above positions are maintained for two years. There have been no positions advertised in the last two years. The University no longer retains the job announcements or advertisement records relating to these positions.
The individuals hired were given no documents "describing the duties of each office provided to each individual hire to fill each office" other than the ones in the Administrative Regulations.
Mr. Jacobs questions the adequacy of the University's search for these documents, noting that the University lacks authority to destroy job announcements, and that its failure to locate the announcements in the successful applicant's personnel file does not relieve it of its duty to conduct a more far reaching search (including the files of individuals to whom the announcements were routed, the members of search committees, and an " external search agency" which the University employed). In support, he cites a number of state and federal authorities which, he argues, compel the University to permanently retain these records.
In a supplemental response directed to this office, Mr. DeBin reiterates that no responsive records exist for the reasons stated in his original response. He indicates that the University "searched each individual's employment records, any record of the search retained by the President's office, and the Employment Office in Human Resources, the exact locations that Mr. Jacobs suggests should have been searched. " Relying on 99-ORD-70 and 98-ORD-83, Mr. DeBin asserts that the University's search for the records identified in Mr. Jacobs's request was adequate. We agree.
In 95-ORD-96 this office articulated a standard by which to measure the adequacy of an agency's search for public record. There we held that a public agency must "make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." 95-ORD-96, p. 7. Continuing, we observed:
The agency must expend reasonable efforts to identify and locate the requested records. And, if the documents do exist, and the public agency cannot locate them, the agency's "good faith should not be impugned unless there was some reason to believe that the supposed documents could be located without an unreasonably burdensome search."
Id., citing Goland v. Central Intelligence Agency, 607 F.2d 339, 353 (D.C. Cir. 1979).
Measured against the standard set forth in 95-ORD-96, we find that the University's search for job announcements and descriptions was adequate. The University states that the records are no longer available because they are over two years old. Nevertheless, the University expanded its search to include other possible locations where the records might be retained beyond their normal retention period. It is not incumbent on the University to embark on a fishing expedition "when the likelihood of finding records ? is slight." Id., citing In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E. D. NY. 1983). The University cannot furnish Mr. Jacobs with records that no longer exist. Its failure to produce a nonexistent record cannot be said to constitute a violation of the Open Records Act.
Nevertheless, the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, relating to the management of public records. KRS 61.8715 now provides "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 [KRS 171.410 to 171.740, dealing with the management of public records, and KRS 61.940 to 61.957, dealing with the coordination of 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 records management. Id.
Although we find no direct reference to job announcements in the Records Retention Schedule State University Model, those records arguably fall within one or more of the series of records identified in the schedule which require permanent or indefinite retention. In light of the records management and retention issues which their destruction raises, we are obliged to refer this matter to the Department for Libraries and Archives for further inquiry.
2. "The official job description for the office held by Paul Van Booven, as well as all other documents that are not the official job description document, but describe the duties and functions delegated to Mr. Van Booven, including, but not limited to, all ad hoc duties assigned to Mr. Van Booven since his appointment to his position."
In its response, the University asserted that "no official job description exists for Mr. Van Booven's position as Deputy General Counsel, " and that there are no other documents describing his duties and functions. Mr. DeBin explained that a job description was not generated when Mr. Van Booven was promoted from associate general counsel to deputy general counsel. In his letter of appeal, Mr. Jacobs challenged these statements, noting that "both the University's own Records Retention and Disposal Schedule and the General Model Schedule for Public Universities provides a records series title 'job description' and prescribe that such records are 'permanent.'" On this basis, he argued that because the records schedule anticipates the existence of a job description "there is a 'reason' (95-ORD-96) to find the University's [sic] search justification inadequate...."
In a supplemental response addressed to the Attorney General, Mr. DeBin elaborated on the University's position. He stated that the University conducted an unsuccessful search of Mr. Van Booven's personnel file, as well as the files located in the Human Resources Office. The record could not be located, Mr. DeBin explained, because no job description was created at the time of Mr. VanBooven's promotion. Continuing, he noted that a search of Mr. Van Booven's personnel file disclosed no records reflecting "ad hoc duties," and, "upon questioning, Mr. Van Booven confirmed that no such record exists." Again, Mr. DeBin asserted that the University's search, and the explanation offered for its inability to produce responsive records, was adequate. Again, we agree.
Based on the authorities cited above, we believe that the University's search was adequate. The University documented, in apparent good faith, its efforts to identify and locate the requested records, and the methods described were those "which could reasonably be expected to produce the records." 97-ORD-31, p. 9. Having failed to locate the records, the University offered an explanation for their nonexistence. Simply stated, no such records were ever created. In the absence of concrete evidence to the contrary, this office has no reason to doubt the University's assertion, which Mr. Jacobs characterizes (incorrectly in our view) as mere speculation, that no such records now or ever existed. 1
Fundamental to Mr. Jacobs's argument is the presumption that a job description for Mr. Van Booven, as well as records reflecting his ad hoc duties, must exist because "job descriptions" appear as scheduled public records on the University's records retention schedule. His is a "records creation," as opposed to a "records access," issue. As such, it must be resolved by the Department for Libraries and Archives. As this office has observed:
There is no reference in [KRS 61.8715, or anywhere else in the Open Records Act] to records creation. 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 therefore affirm those principles articulated in OAG 78-231 and subsequent opinions relative to records creation, and conclude that, KRS 61.8715 notwithstanding, 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; see also, 97-ORD-3. Nor, we are obliged to add, is this officeempowered to declare that an agency's failure to create a record constitutes a violation of the Open Records Act. Again, we defer to Libraries and Archives in such matters.
4. "Official University documents, other than Administrative Regulations, that describe additional official duties that the President, as the chief University administrative officer, has assigned or delegated to the chief administrative officers identified in [the official organizational chart showing the University offices that report directly to the office of the University President]."
The University responded to this request by furnishing Mr. Jacobs with various memoranda announcing appointments, University administrative regulations, Human Resources job descriptions, and records reflecting Board actions relative to appointments. In his letter of appeal, Mr. Jacobs complained that although the University "obviously knew" that this request encompassed records "issued as 'memoranda' or 'announcements, '" Mr. DeBin failed to produce "the most conspicuously missing responsive record of all . . . posted right there in his office: the posted notice that by KRS 61.876(2)(3) [sic] identifies that HE is the Official Custodian with the duties prescribe [sic] by the Open Records Law."
We refer the parties to footnote 1, above. It is our opinion that the notice of rules and regulations governing access to public records, which, pursuant to KRS 61.876(1) and (2), must be posted by all public agencies in a prominent location accessible to the public, would not ordinarily be treated as a "job description" for, or a record "describing additional official duties" of, the agency's records custodian. It is what it purports to be, and no more. If Mr. Jacobs "wishes to inspect the [notice required by KRS 61.876(1)] for the University of Kentucky, he should resubmit his requests using clear and unambiguous language." 94-ORD-8, p. 4.
An open records request should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the request should not require "the specificity . . . of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government." 95-ORD-49, p. 5, citing Providence Journal Company v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.C.D. Rhode Island, 1978). Instead, the requester should submit "a brief and simple request for the [government] to make full disclosure or openly assert its reason for nondisclosure." Id. Mr. Jacobs's requests must be framed with sufficient clarity and directness to enable the custodian of records to identify and retrieve the records he wishes to access. This, as we have so often noted, is a precondition to inspection of public records. See e.g., 92-ORD-1261, and authorities cited therein.
5. "The two most recent performance evaluations of the President by the Board."
In denying this request, the University of Kentucky advised Mr. Jacobs that there were no records responsive to his request. Mr. DeBin indicated that "the Chairman of the Board of Trustees communicates his evaluation of the performance of the President to the President in an annual oral session." Mr. Jacobs challenges the University position, arguing that because UK Human Resource Policy 6.0" plainly anticipates that staff files contain 'Performance Evaluations'," and because documentation he has obtained from the University confirms that "'the office of the President' is officially a 'staff' and not a 'faculty' position," the University's inability to produce the President's evaluation demonstrates that its search for the document was inadequate.
We reject Mr. Jacobs's arguments for the reasons set forth in part 2, above. Again, he invites this office to issue a declaration that the University's failure to create a record constitutes a violation of the Open Records Act. Again, we decline the invitation. Mr. DeBin affirmatively states that no written performance evaluations of the President of the University have been generated, and therefore none exist. The Open Records Act does not require more. Mr. Jacobs must look instead to the State Archives and Records Act , and the Department for Libraries and Archives, for a determination whether such a record should exist.
6. "The two most recent performance reviews for Paul Van Booven for the position he held prior to his promotion to Deputy General Counsel. "
In denying this request, the University advanced the same arguments it had previously advanced in support of its denial of Mr. Jacobs's request for Presidential performance evaluations. Specifically, Mr. DeBin stated that no responsive records exist because Mr. Van Booven's evaluations were not reduced to writing. In his letter of appeal, Mr. Jacobs issues the same challenge to the University's response.
We refer the parties to parts 2 and 5, above. We incorporate the reasoning set forth therein, and find that the University discharged its duties under the Open Records Act by advising Mr. Jacobs that no responsive records exist, and offering a reasonable explanation for their nonexistence. We defer to the Department for Libraries and Archives on the records creations issues implicated by these statements.
7. "The official Board documents that specifically describe the details of the policies, procedures and criteria under which the Board of Trustees evaluates the performance of the University President."
Here again, the University's denial of Mr. Jacobs's request was predicated on the nonexistence of the records sought. Mr. DeBin offered no explanation for their nonexistence. In response, Mr. Jacobs cites both federal regulation and University records retention policy, as well as the absence of any justification for the nonexistence of procedures governing the President's performance evaluation, to support his position that "the University has failed to sustain its burden of proof as to why these anticipated, and essential, University records were either not located or not created in the first place." He asks that the Attorney General:
Decide that the University's reply "violates" the Open Records law on account of inadequate justification of the search, and that, to the extent ZERO records have been created, the University has KRS 61.880(4)--"subverted" the "intent" of the Open Records law that is expressed in KRS 61.8715.
Without such a decision, Mr. Jacobs concludes, he "cannot proceed to obtain court enforcement of [the Attorney General's] decision." 2
It is the opinion of this office that the University of Kentucky did not violate the Open Records Act in its response to Mr. Jacobs's request, since it cannot produce for his inspection records which do not exist. No search for these records was conducted because no written procedures governing the President's performance evaluation have been reduced to writing. The University offers no explanation for its decision not to create written policies and procedures.
As we have noted in parts 2, 5, and 6, above, the law assumes that records will be created in accordance with the guidelines established by the Department for Libraries and Archives under Chapter 171. And, as noted, although the Attorney General is not empowered to address the issue of records creation, the Department clearly is. Because the cited portions of the University records retention policy seem to indicate that the University may lack discretion to fail to create such a record, and because such policies and procedures 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 again defer to the Department for Libraries and Archives for a determination whether additional inquiries are warranted under Chapter 171.
8. "The 'records organization document' (or similar record by other name) that shows that [files maintained on members of the Board of Trustees] even exist, and that show that the administrative office or other location at which [Mr. DeBin], as Official Custodian, are responsible for these files being maintained, cared for and kept.
In denying Mr. Jacobs's request, Mr. DeBin explained:
The files relating to the members of the Board of Trustees are maintained by the President's office. According to Mr. Weston Thompson, the University Archivist and Director of the U. K. Records Program, there is no "records organization document" that relates specifically to these files.
Mr. DeBin did, however, offer to furnish Mr. Jacobs with a copy of the State University Model Records Retention Schedule.
In a supplemental response directed to this office, Mr. DeBin asserts that no retention schedule exists for files maintained on members of the University's Board of Trustees and containing their correspondence. As before, he asserts that correspondence of the members of the Board is not a public record under the Open Records Law. Mr. Jacobs questions the University's position, relying on this office's decision in 94-ORD-121, and arguing that:
The University appears to be inviting the Attorney General into an opportunity for a de facto overruling of [that decision], wherein the Attorney General held it to be a " violation " of the Open Records Act for the University to fail to produce a responsive records schedule for precisely described records.
We do not share Mr. Jacobs's view that 94-ORD-121 is directly implicated by this portion of his appeal. We believe that the principles established there remain valid, but do not agree that those principles are imperiled by a holding that records which are not in the custody of the University are not public records.
In 99-ORD-139, the Attorney General held that correspondence generated by and for members of the University's Board of Trustees was not public record because it was not "prepared, owned, used, in the possession of, or retained by a public agency. " KRS 61.870(2). We adopt in full the reasoning of 99-ORD-139, including the decision to refer the question of whether those records should be managed and maintained as public records to the Department for Libraries and Archives. Should the Department, working in concert with the University, determine that the trustees' correspondence should be maintained as public record, we would anticipate that as the next logical step those records would be scheduled.
In 99-ORD-139, Mr. DeBin indicated that the University had "searched the file of each board member as maintained in the President's office," and no responsive documents were found. 99-ORD-139, p. 2. Had they been found in the members' files in the President's office, "they would become 'public records' under the Act." Thus, by the University's admission, the trustees' files in the President's office are public records, and all documentation contained therein is subject to the Open Records Act. It is here that 94-ORD-121 comes in to play.
At page 8 of 94-ORD-121, the Attorney General observed:
The purpose and intent of the Open Records Act is to provide full access to public records. The intent of the Archives and Records Act, which has been deemed essentially related to the intent of the Open Records Act, is to insure efficient records management. We believe that it is impossible, as a practical matter, to facilitate access to University records if the University has not established a records management program for unscheduled records. The failure of the University to implement such a program increases the likelihood that records access will be frustrated. Simply stated, the ability to retrieve a public record and make it available for inspection is directly related to the University's ability to locate that record within the labyrinthine University structure.
Inasmuch as records of Board members housed in the President's office are public records for purposes of the Open Records Act, we believe it is incumbent on the University to facilitate access to these records in a manner consistent with 94-ORD-121.
Nevertheless, we emphasize that although the University may need to reevaluate its records management program relative to trustees' files in the President's office, "[The Attorney General] is not empowered, and therefore declines, to order the University to do so, or to create a record documenting [its records management program]." 94-ORD-121, p. 8. In 94-ORD-121, we advised the complainant that his remedies lay in the State Archives and Records Act, and not in the Open Records Act. Contrary to Mr. Jacob's apparent belief, at no point in that decision did this office declare that the University's failure "to produce a responsive records schedule for precisely described records" constituted a violation of the Open Records Act. Mr. Jacobs should be guided by these principles in resolving future records access issues.
Conclusion
In closing, we remind Mr. Jacobs of that "elementary action of statutory construction" which we relied upon in 94-ORD-121:
where a statute expressly provides a particular remedy or remedies, a court [and, of course, this office] must be chary of reading others into it.
94-ORD-121, p. 7, citing Transamerica Mortgage Advisors, Inc. v. Lewis, 441 U.S. 11, 19, 62 LEd2d 146, 100 S. Ct. 242 (1979).KRS 61.880(2) authorizes the Attorney General to issue "a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884." It does not authorize the Attorney General to issue a decision declaring that the failure to create a record violates the Open Records Act. We affirm prior decisions of this office declaring that the failure to create a record does not constitute a violation of 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