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 Kentucky Council on Postsecondary Education violated the Open Records Act in responding to Norman L. Snider's December 8, 1999, open records request. For the reasons that follow, we find that KCPE properly denied his request for nonexistent records, insofar as it cannot produce records which were never created. Further, we find that KCPE improperly withheld certain responsive records on the basis that those records were already in Mr. Snider's custody.
A brief summary of the facts giving rise to this appeal is in order. On July 12, 1999, Mr. Snider submitted a written request to Dr. Gordon K. Davies, President of the Kentucky Council on Postsecondary Education, for an investigation into "possible violations of civil rights in the [council's] employment practices . . . from 1994 to 1997." Approximately one month later, Mr. Dennis Taulbee, associate vice president and general counsel for KCPE, notified Mr. Snider in writing that the duty of conducting the investigation had been delegated to him. In late November, 1999, Mr. Taulbee wrote Mr. Snider to advise him that the investigation had been concluded, and to provide Mr. Snider with his written findings.
On December 8, 1999, Mr. Snider filed an open records request for the following records:
1. All correspondence, papers, notes, discs, tapes, electronic mail, faxes, and other documents generated from July 11, 1999 until November 30, 1999, in the development and completion of the inquiry reported to me by you on November 30, 1999 in response to my letter to Dr. Gordon Davies of July 12, 1999, and Dr. Davies' subsequent assigning to you the task of inquiring into the matters raised in my letter.
2. All correspondence, papers, notes, discs, tapes, electronic mail, faxes, and other documents relied upon by Dr. Davies, you, and any other persons associated with the Kentucky Council on Postsecondary Education, or contracted by them, in formulating the final Council policy and response to my letter of July 12, 1999, as evidenced in your registered letter to me of November 30, 1999.
3. All correspondence, papers, notes, discs, tapes, electronic mail, faxes, and other documents - with name and address redacted, as appropriate - which form the basis of this quote in your letter to me of November 30, 1999: "3. . . . An offer was made, the offer was accepted orally, and a letter of appointment was issued. Subsequently, the candidate withdrew her letter of acceptance."
4. All correspondence, papers, notes, discs, tapes, electronic mail, faxes and other documents that relate to the development and promulgation of the following policy and procedure, reported in your letter to me of November 30, 1999: "All future correspondence on this matter, if any, should be directed to my attention. Council members and Council staff have been instructed to bring all pertinent communications to my attention. I asked each of the non-Council members to inform me of any communications from or with you."
KCPE furnished Mr. Snider with copies of "the Council agenda from November 7, 1994, [sic]," and "several pieces of correspondence with the name of the individual redacted, " in response to requests two and three, but denied the existence of any other responsive records. This appeal followed.
In his letter of appeal, Mr. Snider questions whether a public agency, such as KCPE, can properly "circumvent the intentions of the public records act by the scheme of not making any records during an inquiry of a citizen's concerns. . . ." A former employee of KCPE's predecessor agency, the Council on Higher Education, Mr. Snider noted that he could think of no inquiry conducted during the period of his employment with the council in which no written documentation was generated. In a subsequent letter directed to this office, he observed:
This inquiry must have included interviews with at least 6 people, a review of agency records, correspondence with the Kentucky Commission on Human Rights, and instructions to many CPE board members and CPE staff members to report to Mr. Taulbee any contacts between them and me.
It was Mr. Snider's position that this "is an example of an agency depending on the letter of the law to eviscerate the spirit of the law." He urged this office to "go beyond the precedent of past Opinions . . . and determine the extent to which specific representatives of the CPE intentionally decided among themselves to conduct this inquiry and their subsequent decision-making process in a way that would use the strict letter of the law . . . to contravene the law's spirit."
Upon receipt of this office's notification of open records appeal, Mr. Taulbee submitted a supplemental response. Mr. Taulbee reaffirmed his statement that no records were generated in the course of the investigation other than those already provided to Mr. Snider. With respect to letters and e-mails exchanged with Mr. Snider, he explained:
I did not give Mr. Snider copies of e-mails and letters he generated nor did I give him letters that I generated to him. There were two reasons for this decision: he already had copies of correspondence he generated and that I generated to him; and, I do not believe that the correspondence generated by me to him was relevant to the records he requested. Mr. Snider asked for records used in forming the conclusions stated in the November 30, 1999 letter. By definition, that request excludes the November 30, 1999 letter - it is the conclusion. Except for that November 30, 1999, all correspondence related to process and was not used "in the development and completion of the inquiry. . . ." Neither was the correspondence
Mr. Taulbee expressed KCPE's willingness to provide Mr. Snider with copies of "all correspondence, regardless of its relevance to the questions posed," should the Attorney General conclude that disclosure is required, and despite the fact that Mr. Snider "already possesses" these materials.
It is the opinion of this office that KCPE improperly withheld letters and e-mail exchanged by Mr. Taulbee and Mr. Snider in the course of the investigation. We do not share KCPE's view that these records were not responsive to Mr. Snider's broadly worded open records request for:
All correspondence, papers, notes, discs, tapes, electronic mail, faxes, and other documents generated from July 11, 1999 until November 30, 1999, in the development and completion of the inquiry reported to me by you on November 30, 1999 in response to my letter to Dr. Gordon Davies of July 12, 1999, and Dr. Davies' subsequent assigning to you the task of inquiring into the matters raised in my letter.
(Emphasis added.) In analyzing this request, we discern no attempt to exclude "correspondence related to process," but a determination to formulate an all-encompassing request for all records compiled in the course of the investigation.
The fact that Mr. Snider "already had copies of correspondence he generated and that [Mr. Taulbee] generated to him" does not alter our conclusion. In at least one open records decision, the Attorney General has rejected this argument, holding that "this rationale does not support nondisclosure, and is not a legally recognized basis for denying an open records request." 99-ORD-121, p. 10. As Mr. Snider correctly observes, it is only through full disclosure of KCPE's records documenting their written exchanges can he satisfy himself that the record is complete. He notes:
Mr. Taulbee did not respond to all of the correspondence I addressed to him, and given the vagaries of regular mail and e-mail, some correspondence between us may have been lost in transit.
KCPE's response was procedurally deficient to the extent that it did not include a statement of the exception authorizing nondisclosure of the correspondence, as required by KRS 61.880(1). We believe that there is no exception authorizing nondisclosure. It is our opinion that these records must be disclosed.
Nevertheless, we affirm KCPE's denial of the remainder of Mr. Snider's request on the basis that no records were generated in the course of the investigation, excluding those already disclosed, or, consistent with the directive above, soon to be disclosed. While we understand Mr. Snider's frustrations, Mr. Taulbee has orally confirmed in a conversation with the undersigned that no records were created. We are not empowered to go beyond the written record to determine whether KCPE employees and officials purposefully attempted to avoid public scrutiny by failing to create a paper trail. In the absence of evidence to the contrary, we must assume the truthfulness of KCPE's assertion that no other responsive records exist.
On this issue, the Attorney General has observed:
The Open Records Act does not empower the Attorney General to order the creation of records. Nor does the Act require agencies to create records. See OAGs 78-231, 79-547, 80-308, 82-234, 83-111, 89-32, 89-66. In 95-ORD-48, the Attorney General reevaluated this longstanding principle, in light of recent amendments to the law, and expressly declined "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." Thus, we have affirmed the principles articulated in OAG 78-231, and subsequent opinions, relative to records creation, and concluded that the Attorney General cannot order an agency to create records, or declare its failure to do so a subversion of the intent of the Open Records Act.
96-ORD-139, p. 2, 3. As the Kentucky Court of Appeals opined in Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 859 (1996), "it may be that the legislature has failed to provide an appropriate sanction" for the practice complained of, "but that is an omission that needs to be addressed by appropriate remedial legislation. . . ." The Attorney General's limited role in adjudicating an open records dispute is clearly set forth at KRS 61.880(2), and we are not at liberty to deviate from that statute.
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.