Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question raised in this appeal is whether the actions of the Finance and Administrative Cabinet and the Department of Veterans Affairs in response to the open records requests of Ellen Frederick violated the Open Records Act. For the reasons that follow, we conclude that they did not. However, because the appeal raises a possible records management issue, we have referred the matter to the Department of Libraries and Archives for review under KRS Chapter 171.
The facts provided this office indicate that Ms. Frederick made a series of open records requests to both the Cabinet and the Department for certain information and bidding records relating to solicitation number ES-296-01. Specifically, Ms. Frederick requested to review the public record on the "or equal" product comparison process that was followed as outlined in the bid documentation.
In response to a June 6, 2001 request, Karen Powell, General Counsel, Finance and Administration Cabinet, advised:
In regard to your request to review the entire file for ES-296-01, for washers/ dryers at the Eastern and Western Kentucky Veterans facilities, access to the contract files will be allowed Monday through Friday, 8:00 am to 4:30 pm, in the Finance and Administration Cabinet, Division of Material and Procurement Services, Room 373, Capitol Annex, in accordance with 200 KAR 1:020. Please be advised that a portion of the documents you requested to review may be exempt from the Open Records law under KRS 61.878(1)(c). Those are records that are marked "confidential and proprietary" by the bidders when they submit their bids. Staff from the Division Contracting and Administration will be contacting you to schedule a date/time to review the file(s). If you have any questions, please feel free to contact me.
In response to another request by Ms. Frederick, Ms. Powell, in a letter dated September 12, 2001, stated:
This is in response to your Open Records request in which you indicated that you wished to view the file on solicitation number and to "see the open records file on the equipment review that was done on each of the acceptable manufacturers for ES 296-01 . . . ." It is my understanding that you have already reviewed this file. There are no records concerning an "equipment review" in the Finance and Administration Cabinet. You may wish to contact Mr. McSpadden at the Thomson Hood Veterans Center, Wilmore, Kentucky at 1-800-928-4838 for any such records they may have concerning the "equipment review."
By letter dated September 17, 2001, Ms. Frederick submitted the following request to Mr. McSpadden at the Center:
Finance and Administration indicated that you are the person I should request to see the public record on the "or equal" product review that was done on the recent VA locations. May I please be given access to review the product reviews which were done on each of the acceptable manufacturers for ES-2996-01:
Maytag
Edro
Huebsch
Unimac
Braun
Milnor
Please identify the evaluator, their firm, their credentials and the standards used to establish the equipment reviewed. I look forward to your written response.
In response to Ms. Frederick's request, Dan W. McSpadden, Administrative Services Director at the Center, advised:
I received your request to see the product review performed on the laundry equipment. I was not involved in any review of VAMC locations. I know that Jim Drake (during the meeting in Frankfort) asked you for the information about the facilities where you had placed equipment. Based on the equipment placements you provided him, he may have done an equipment review. I suggest you contact him about this product review. You may reach Mr. Drake at 502 564 9203.
On October 1, 2001, Ms. Frederick reiterated her September 17, 2001 letter to Colonel Drake specifically requesting to inspect the "or equal" product review that was done on the Hazard and Hanson VA locations.
Responding to Ms. Frederick's request submitted to Colonel Drake, Mr. McSpadden explained:
When preparing a solicitation for bids, we recommend a product based on our experience, usage, or knowledge of the equipment. We also state on the solicitation that we will accept an approved equal product.
At the time of the bid, we had had eight years of reliable service from the UniMac washers and therefore this was the product recommended for solicitation.
By letter dated October 9, 2001 to Mr. McSpadden, Ms. Frederick, in relevant part, made the following request:
I understand that your experience with the UniMac product resulted in that product being specified. I also understand that the solicitation indicated that an approved equal product would be acceptable and several manufacturers were identified as offering acceptable products. My question continues to be what was the process for approving those identified manufacturers' products as equal? What evaluation was done on those acceptable products and what evaluation was done on my product? I am requesting that I either be allowed to see the file or receive in writing a statement that an evaluation was never performed or identify the party who handled the evaluation process identified in the bid documents.
In her letter of appeal, Ms. Frederick summarized the basis of her appeal as follows:
I asked to review the public record on the "or equal" product reviews done on the Hazard and Hanson VA locations. Since there were acceptable manufactures listed, I requested to see the reviews done to get them on the "approved manufacturer's list" and the file on what was done on my equipment product review. My last correspondence was dated October 9, 2001 and I have not received a response.
After receipt of notification of the appeal and a copy of Ms. Frederick's letter of appeal, Mr. McSpadden provided this office with a response to the issues raised in the appeal. In his response, he explained:
In response to the open records appeal from Ms. Ellen Frederick, I do not have any records available to be reviewed. I spoke with Ms. Frederick and explained that I didn't have any comparison data at this facility.
During the planning phase for the two new veterans centers located in Hazard and Hanson, the staff at the Thomson-Hood Veterans Center recommended products based on our experience and usage. When a solicitation for bids is published, specifications for that item are listed. If we are familiar with a product that fits the specifications, we will suggest that product and also state that we will accept an "approved equal product".
Many of the items for these two homes were included in the construction package and not ordered by staff at the Thomson-Hood Veterans Center. The laundry equipment was one such group of items ordered as part of the construction package. The[re] may be information concerning these purchases at the Division of Material and Procurement Services.
The Cabinet also responded to the letter of appeal and reiterated its original response that there were no equipment review records [relating to ES-296-01] in the Cabinet's records.
In a reply to the agencies' responses, Ms. Frederick asked that she either be allowed to see the files relating to the evaluation of her product or receive in writing a statement that an evaluation was never performed.
We are asked to determine whether the responses of the two agencies violated the Open Records Act. For the reasons that follow, we conclude they did not. However, because possible records management issues are raised, we have referred the matter to the Department of Libraries and Archives for review under KRS Chapter 171.
Both the Cabinet and the Department advised Ms. Frederick that the respective agencies had no comparison "or equal" equipment review records. The agency affirmatively stated that the revised documents had not yet been prepared and thus did not exist.
Obviously, a public agency cannot afford a requester access to records that it does not have or which do not exist. 99-ORD-98. The Cabinet and Department advised that the requested records do not exist. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150.
Accordingly, we find that the actions of the Cabinet and Department were in accord with the requirements of the Open Records Act and prior decisions of this office. 00-ORD-108. The agencies affirmatively discharged their duties under the Open Records Act by advising Ms. Frederick that the records that she requested did not yet exist.
In 1994 the Open Records Act was amended. The Act 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]." KRS 61.8715. The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id.
Since these amendments took effect on July 15, 1994, the Attorney General has 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, an agency must, at a minimum, offer some explanation for the nonexistence of the records.
The Cabinet and Department have stated that they have no comparison "or equal" equipment review records. KRS 45A.010(2)(e) provides that the underlying purposes and policies of the Kentucky Model Procurement Code shall be "to insure the fair and equitable treatment of all persons who deal with the procurement system of the Commonwealth." The agencies fail to offer any explanation for the nonexistence of records relating to the evaluation process of whether products submitted in a public bidding proceeding either did or did not meet the "or equal" standard in order to be given an "acceptable product" status. Such a record could presumably provide a basis for a bidder to assess whether she had received fair and equitable treatment in the bidding and procurement process.
Accordingly we are unable to determine if the agencies have established an adequate basis or explanation for the nonexistence of these records, and thus met its statutory burden of proof. KRS 61.880(2)(c); 97-ORD-116. For this reason, we have referred this matter to the Department for Libraries and Archives for a determination whether additional inquiries are warranted under KRS Chapter 171, and in particular KRS 171.640 requiring adequate and proper documentation of essential transactions of an agency.
Addressing other issues, the Attorney General has long recognized that a public agency is not statutorily obligated to honor a request for information as opposed to records. For example, in 93-ORD-51, this office held that the Open Records Act:
was not intended to provide a requester with particular information, or to require public agencies to compile information to conform to the parameters of a given request. See, e.g., OAG 76-275; OAG 79-547; OAG 81-335; OAG 86-51; OAG 87-84; OAG 89-77; OAG 89-81; OAG 90-19. Rather, the law provides for inspection of reasonably identified records.
93-ORD-51, p. 3.
Mirroring this view, in OAG 87-84 we observed:
Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
OAG 87-84, p. 3. These decisions were premised on the language of the statutes themselves, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records " emphasis added).
Accordingly, we conclude that the agencies did not violate the Open Records Act in denying Ms. Frederick's requests for information or for a written statement that an evaluation on her product was never performed. An agency is not required to create a record to meet the parameters of an open records request. 01-ORD-121.
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.
Ellen Frederick1312 N. LimestoneLexington, KY 40505
Dan W. McSpaddenAdministrative Service DirectorDepartment of Veterans AffairsThomson-Hood Veterans Center100 Veterans DriveWilmore, KY 40390
Karen A. PowellGeneral CounselFinance and Administration CabinetOffice of Legal and Administrative ServicesCapitol Annex BuildingFrankfort, KY 40601