Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue raised in this appeal is whether the University of Kentucky violated the Open Records Act in responding to the requests of William C. Jacobs for copies of certain personnel records relating to Dr. Charles Wethington, President of the University. Specifically, Mr. Jacobs appeals the University's actions relative to his request for the initial 1965 Notice of Appointment contract, the 1965 appointment materials, and the 1965-66 faculty perfomance evaluation materials of Dr. Wethington.
This appeal is a follow up appeal from issues raised in 00-ORD-4 and raises basically the same issues relative to the adequacy of the University's search for personnel-type records and its explanation as to the unproductive search and the nonexistence of the requested records. For the reasons that follow, we conclude that the University's search for the requested records was adequate and because it cannot account for the nonexistence of the records, records management issues are raised. We have therefore referred the matter to the Department for Libraries and Archives for review under Chapter 171 of the Kentucky Revised Statutes.
In 00-ORD-4, the University indicated that in searching for the requested records related to Dr. Wethington, it checked with the President's Office, the University's Archives, the Lexington Campus Chancellor's Office, Dean's Office, College of Education, Dr. Juanita Fleming, the Senate Council Office and Human Resources--Employee Records to ascertain if such records were at any of those locations. Each office contacted advised that it had no such records. This office found that this search method employed was one that could be reasonably expected to produce the requested records and determined that the agency's search, in all respects, was adequate under the Open Records Act.
In 00-ORD-4, we remanded the issue of the existence and production thereof, or the nonexistence and explanation thereof, to the University for a written response. By letter dated January 21, 2000, the University responded to Mr. Jacobs, stating:
Pursuant to the Attorney General's directive as outlined on the last page of 00-ORD-4, we asked Mr. Frank Stanger in the University of Kentucky Special Collections and Archives Department of King Library to search the archived records of the Executive Vice President. Mr. Stanger advises that he found no records responsive to your inquiry relating to ". . . initial appointment and reappointment forms for Mr. Wethington as instructor or assistant professor, as an untenured appointment, in 1965, 1966, 1967, 1968, 1969, and 1970" [from your November 19, 1999 letter to Amye Bensenhaver]. After looking at the reorganization detailed in the April 7, 1970 Board Minutes when the Office of Executive Vice President was abolished, it is logical to assume that such personnel file type records were transferred to other offices at the University, all of which have been searched and no responsive records, found, as detailed in our previous responses.
In response to a February 14, 2000 request from Mr. Jacobs, in part, for records "submitted by or for Mr. Wethington in connection to his appointment as an instructor in 1965 in the UK College of Education," the University indicated that it found no personnel type records related to Dr. Wethington. The University listed the files it had searched as follows:
Those files included Executive Vice President Albright's papers, relevant portions of the Singletary papers and all faculty personnel files of the Vice President for Academic Affairs and the Lexington Campus Chancellor's Office. As indicated in my previous correspondence to you, we have also previously searched the President's Office, College of Education, Dean's Office, Dr. Juanita Fleming's Office, the Senate Council Office, and Human Resources, and no records regarding Charles T. Wethington relative to your request were located in those offices.
As in 00-ORD-4, we conclude that the search employed by the University was one that could be reasonably expected to produce the requested records. Accordingly, we find that the fact that the University was unable to find the requested records did not constitute a violation of the Open Records Act.
Records such as initial 1965 Notice of Appointment contract, the 1965 appointment materials, and the 1965-66 faculty perfomance evaluation materials of Dr. Wethington are records that presumably would be contained in his personnel file. The University has stated that it does not have Dr. Wethington's personnel file and could not find copies of the requested records in other files in its offices.
In its September 5, 2000 response to Mr. Jacobs' letter of appeal, the University indicated that the best possible explanation that it could provide as to the whereabouts of Dr. Wethington's personnel file was that it was transferred to the Kentucky Community and Technical College System. The University explained that "a logical assumption is that Dr. Wethington's personnel file 'followed' him from the College of Education to the Community College System when he transferred to the System in 1966, when he became Director of the Maysville Community College." The University further explained that all Community College System records were transferred to the Kentucky Community and Technical College System in 1998 by operation of law pursuant to Section 19 of HB 1 of the 1997 First Extraordinary Session of the Kentucky General Assembly. In our view, this was a reasonable explanation for the nonexistence of the records at the University and its corresponding inability to locate them. 00-ORD-4. Moreover, the University provided Mr. Jacobs with the name and location of the custodian of records at the Kentucky Community and Technical College System.
KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
In a June 16, 1999 response to Mr. Jacobs, the University advised, in part:
Under House Bill 1, the Higher Education Improvement Act of 1997, the University of Kentucky Official Records Custodian is no longer the custodian of records of the Community College System.
Accordingly, pursuant to 61.872(4), please be advised that your request should be directed to Sandra Gubser, Records Custodian, Kentucky Community and Technical College System, 2624 Administration Park Drive, P.O. Box 14092, Lexington, Kentucky 40512-4092.
Thus, the University complied with the requirements of KRS 61.872(4) by providing the name and location of the official custodian of the agency that it believed had custody and control of the requested records. 96-ORD-118.
Under the facts of this appeal, this office is unable to determine the location of Dr. Wethington's personnel records or what happened to them. The University contends that it does not have the requested records or his personnel file. This office has no reason to doubt the University's response that it does not have these records. Accordingly, we conclude that the response of the University that it could not provide copies of records that it did not have, was consistent with the Open Records Act and prior decisions of this office 98-ORD-126.
Nevertheless, the University has an obligation relative to proper records management and retention. The fact that neither the requested records nor the personnel file can be located suggests that a management of records issue is present. KRS 61.8715 provides:
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 61.870, et seq., the Kentucky Open Records Act, KRS 171.410 to 171.740, relating to public records management, and KRS 61.940 to 61.959, relating to 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 proper records management and maintenance. KRS 61.8715. With these observations in mind, we have referred this matter to the Department for Libraries and Archives for additional inquiries as the Department deems appropriate.
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.