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 Kentucky State University violated, or otherwise subverted the intent of, the Open Records Act in its disposition of Dan S. Green's December 6, 1999, request for "a copy of the recent evaluation of President Reid done by Edward Penson." Mr. Green's request went unanswered, prompting him to initiate an open records appeal on January 20, 2000. For the reasons that follow, we find that KSU did not violate the Open Records Act, insofar as it cannot make available for inspection and copying a public record which has been destroyed, but that its failure to implement an adequate program for insuring records preservation constitutes a subversion of the intent of the Open Records Act, and, at least arguably, the State Records and Archives Act.
In response to this office's notification of receipt of Mr. Green's appeal, on January 31, 2000, KSU legal counsel Harold S. Greene, Jr., advised the Attorney General that Dr. Penson, the consultant hired to evaluate President George Reid, "did not create a record of his notes and observations regarding the president's review." Mr. Greene explained:
KRS 61.870(2) implies that a public record must be in some physical form. The observations of Dr. Penson as to the presidential review process were never reduced to writing nor was there any intent to do so. All of Dr. Penson's observations were presented orally to the Kentucky State University Board of Regents in closed session.
He did not elaborate.
It is the opinion of this office that the eighty-four page document distributed to the KSU Board of Regents by Dr. Penson at the Board's illegal November 16, 1999, meeting 1 was a public record within the scope and meaning of KRS 61.870(2). While we do not find, as a matter of law, that KSU violated the Open Records Act by failing to produce a copy of the record, since it had apparently been destroyed, we do find that KSU subverted the intent of the Act by failing to establish effective controls over the maintenance of the record, thus frustrating full public access. We have not referred this matter to the Department for Libraries and Archives for a determination of whether KSU violated the provisions of Chapter 171, and in particular KRS 171.680, KRS 171.710, and KRS 171.720, relating to its duty to manage and preserve its public records, and to establish safeguards against removal or destruction of those records, because the Department has already launched an investigation into the destruction of the public record. We have, however, forwarded a copy of our open records decision to the Department for consideration in its ultimate resolution of this controversy.
We begin by pointing out a number of inconsistencies in the arguments advanced by KSU in its defense. In his January 31 response, Mr. Greene stated that Dr. Penson's observations "as to the presidential review process were never reduced to writing nor was there any intent to do so." This statement is directly controverted by the terms of Dr. Penson's personal service contract and revised letter of agreement. At pages 2 and 3 of the letter of agreement, Dr. Penson agrees to "prepare a final written report for President and Board," said report to be treated as "confidential, in keeping with state statutes that provide 'executive session' responsibilities for personnel matters before the Board." 2 Page 5 of the agreement stipulates that "two-thirds of [the] total fee, $ 7,200, is due at the time of [Dr. Penson's] on-site visit . . . [and] the remaining one-third of [the] fee, $ 3,600, is due upon Board and President's receipt of [his] written report."
Based on contemporaneous news accounts, it is apparent that a record was, in fact, created. On November 30, 1999, The State Journal reported that "an 84-page type-written report prepared for KSU's Board of Regents had been shredded." "Consultant Shredded Evaluation of Reid," The State Journal , November 30, 1999, at 1, col. 1. A number of regents interviewed for the article expressed their view that the 84-page report constituted the president's evaluation. Id. at 7, col. 4 ("Regent Brenda Schissler said she understood the document to be Reid's evaluation"); Id. at 7, col. 5 ("Regent Mae Cleveland said the regents 'discussed the evaluation in-depth'"); Id. (Regent Anthony "Howard said he, too, thought the document was Penson's evaluation of the president's job performance"). Other regents and administrators, as well as Dr. Penson, characterized the 84-page document as the evaluator's "personal notes," attempting to draw a distinction between an "evaluation" and a "review."
Because all copies of the 84-page document have apparently been destroyed, we are deprived of the opportunity to review the document, pursuant to KRS 61.880(2)(c), to ascertain its true character. However, regardless of whether it was designated a "review," an "evaluation," 3 or "notes," it is abundantly clear that the 84-page document was a public record as defined in KRS 61.870(2). That statute provides:
"Public record" means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.
The 84-page document at issue in this appeal was "owned, "used," and "in the possession of," albeit briefly, a public agency, KSU, and therefore falls squarely within the parameters of KRS 61.870(2). KSU spent over $ 13,000 "for the project titled 'Review of President and Board and Preparation of Report ,'" and the public has a legitimate interest in the contents of the report. 4 Revised Letter of Agreement, p. 1 (emphasis added). In Kentucky the General Assembly has determined that "free and open examination of public records is in the public interest . . . even though such examination may cause inconvenience or embarrassment to public officials or others." KRS 61.871. The 84-page document was not the "property" of a private citizen, but a public record in the custody of a consultant under a personal service contract with a public agency, and that consultant was not free "to shred it or burn it, whichever was easiest. . . ." Id. at p. 7, col. 2. 5
It is equally clear that KSU failed to discharge its statutory duty "to manage and maintain [its] records according to the requirements" of the Open Records Act, KRS 61.870 - 61.880 and the State Archives and Records Act, KRS 171.410 - 171.740, in order "to ensure that efficient administration of government and to provide accountability of government activities. . . ." KRS 61.8715. On this issue, the Attorney General has observed:
Until July 15, the State Archives and Records Act, codified at KRS 171.410, tracked a parallel path to that of the Open Records Act. Those paths now converge. Under the provisions of the Archives and Records Act, "the head of each state and local agency shall establish and maintain an active continuing program for the economical and efficient management of the records of the agency." KRS 171.680. The agency's program must provide for:
Among the duties imposed on the agency head by operation of these provisions, he must "establish such safeguards against removal or loss of records as he shall deem necessary and as may be required by rules and regulations issued under authority of KRS 171.410 to 171.1740." KRS 171.710. These safeguards include "making it known to all officials and employes of the agency that no records are to be alienated or destroyed except in accordance with law, and calling attention to the penalties provided by law for the unlawful removal or destruction of records." KRS 171.710.
In enacting KRS 61.8715 the General Assembly recognized that the intent of the Open Records Act, to provide full access to public records, was essentially related to, and would be promoted by, efficient records management. This, of course, is the intent and purpose of the State Archives and Records Act. Subversion of the intent of the Archives and Records Act thus constitutes subversion of the intent of the Open Records Act. If a public agency fails to discharge its statutorily mandated duty to establish effective controls over the creation, maintenance, and use of records, and to make known to all of its officials and employees that no records are to be destroyed except in accordance with the law, the agency subverts the intent of the Open Records Act by frustrating full access to public records.
94-ORD-121, p. 8-10.
The Attorney General has long recognized that a public agency cannot afford a requester access to records which do not exist or have been destroyed. See, e.g., OAG 83-111; 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 been destroyed. 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 destruction, 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, or explain by what authority the records were destroyed. Because KSU failed to provide even a minimal explanation for the destruction of the requested record, we are compelled to conclude that the University failed to adequately manage its records. It is not sufficient to shift the blame to the contractor for destruction of a public record which the University failed to manage and maintain. The loss or destruction of a public record creates a presumption of records mismanagement, but this presumption is rebuttable. The University failed to overcome the presumption because it offered no explanation for the destruction of the record.
While we do not find, as a matter of law, that KSU violated the Open Records Act by failing to afford Mr. Green access to the requested record, that record having been destroyed, 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 the record, thus frustrating full public access. Ultimately, of course, we cannot afford Mr. Green the relief he seeks, namely access to a copy of the record variously referred to as the president's evaluation, the president's review, or Dr. Penson's notes. We cannot compel the disclosure of public records which have been destroyed. Nevertheless, we remind the parties that when dealing with the issue of destruction of public records, KRS 171.990(3) provides:
Any person knowingly violating the rules and regulations of the department pursuant to the provisions of KRS 171.450, 171.560, 171.670, 171.710, or 171.720 is guilty of a Class A misdemeanor and is also liable for damages or losses incurred by the commonwealth. Any state employe who knowingly violates these provisions shall also be subject to dismissal from state employment upon a determination of fact, at a hearing, that a serious violation did occur. The employe's right to appeal to the state personnel board is not abridged or denied. In the event of an appeal, the decision of the state personnel board is final.
As noted, this controversy is currently under investigation by the Department for Libraries and Archives, and a copy of this decision has been forwarded to that agency. Our review is confined to the issues arising under KRS 61.870 to 61.884, and under those statutes we conclude that Kentucky State University subverted the intent of the law in its handling of the public record, and in its disposition of Mr. Green's request. 6
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
1 In its November 22, 1999, response to an open meetings complaint filed by The State Journal , KSU acknowledged that it violated the Open Meetings Act by failing to provide written notice of the November 16 meeting at which Dr. Reid's evaluation was presented, and agreed to remedy the violation "by holding the meeting again with written notice provided." KSU thus acknowledged that the meeting was illegal. Nevertheless, to our knowledge KSU has not yet conducted a remedial meeting.
2 The "state statute" upon which the parties erroneously relied in designating the evaluation report "confidential" was KRS 61.810(1)(f), authorizing closed sessions for "discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student. . . ." By its express terms, this exception only applies when the topic to be discussed in closed session is the appointment , or the discipline , or the dismissal of an employee. See, e.g., 99-ORD-133; 99-ORD-49. Applying the rule of strict construction of the exceptions to public meetings mandated by KRS 61.800, we believe that a closed session discussion of a public employee's evaluation is not authorized by KRS 61.810(1)(f). Moreover, the exceptions to open meetings codified at KRS 61.810(1)(a) through (l) do not create independent bases for denying access to public records. Despite the obvious tensions which sometimes arise, the open meetings exceptions are not engrafted upon the open records exceptions to authorize nondisclosure of nonexempt public records which may properly be discussed in closed session.
3 In our view, the terms "review" and "evaluation" are interchangeable, and the use of one term in place of the other represents a semantic distinction without a difference.
4 Whether the public's interest in the report on the president's performance is superior to the president's privacy interest in that report is an open question. Neither the Attorney General nor the courts have specifically addressed this issue. In the most closely analogous decision, the Attorney General recognized that the evaluation of a school systemsuperintendent was subject to disclosure. At page 4 of 92-ORD-1145, we reasoned:
Because the Superintendent is ultimately responsible for the management of the school system, his performance is of far greater interest to the public [than the performance evaluation of a rank and file public employee], and his expectation of privacy in the evaluation of that performance is correspondingly reduced.
Like the superintendent of a public school system, the president of a public university is ultimately responsible for the management of the public agency he serves, and the public's interest in his performance is substantial indeed. And, like the superintendent, the president's expectation of privacy in his evaluation is correspondingly reduced. Had the 84-page document survived, and had this office concluded, upon reviewing the document, that it did, in fact, constitute the president's evaluation, 92-ORD-1145 would have had a direct bearing on resolution of the issue of whether the document was an open record which must be released for public inspection.
5 A contractor to a governmental agency, this office has often observed, "must accept certain necessary consequences of involvement in public affairs . .[. including] the risk of closer public scrutiny than might otherwise be the case." OAG 90-7, p. 4. Such a contractor "cannot reasonably expect to conduct the public's business in the shadows." 97-ORD-62, p. 3.
6 We also note that the University violated KRS 61.880(1) by failing to respond to Mr. Green's request in writing, and within three business days. It was not until after Mr. Green initiated this appeal that the University issued its response, and that response was directed to the Attorney General, not to Mr. Green. The gravity of this offense, which is no small matter, is overshadowed by the more serious issues relating to records mismanagement and destruction.