Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in the instant appeal is whether the Louisville Metro Health Department violated the Kentucky Open Records Act in denying the request of Charles M. Adams, a former employee of the LMHD, 1 for copies of any records that LMHD generated "in determining [his] performance and [coming] to the decision regarding [his] termination, " including "any and all documents to include intra-office e-mails. " To the extent that the LMHD relied upon the fact that Mr. Adams is already in possession of certain records that are responsive to his request as a basis for denying access to those records, the LMHD erred in its disposition of his request. Because the LMHD otherwise fulfilled its obligation under the Open Records Act by affirmatively indicating to Mr. Adams that the requested records do not exist, however, we affirm its denial.
In a response dated February 26, 2004, Read Harris, Deputy Director of the LMHD, denied Mr. Adams's request as follows: "We are unable to fill your request, as no records exist that meet the description set forth therein." Mr. Adams now appeals from this denial, requesting that "ALL RECORDS to include e-mails and intra-office e-mails [be opened] 2 and sent to him expediently due to the unnecessary delay" allegedly caused by Mr. Harris. In his view, LMHD "has lied by stating that there were no records pertaining to [him][,]" as demonstrated by his copy of his performance appraisal which Mr. Harris very well knew of, since he signed the appraisal himself. (Exhibit B)." In addition to the requisite copies of his request and the LMHD's denial, attached to Mr. Adams's letter of appeal are copies of his disability certification (50%) from the Department of Veterans Affairs, his "performance appraisal record," an e-mail directed to him on January 20, 2004, which consists of a job description for the position of "Office Assistant," and his letter of termination from Dr. Adewale Troutman, Director of Health at LMHD.
In a supplemental response received by this office after Mr. Adams filed his appeal, Kris M. Carlton, Assistant Jefferson County Attorney, elaborated upon the position of the LMHD. As observed by Ms. Carlton, he seems to be claiming:
1. That Louisville Metro Government improperly denied his open records request for records relating to his job performance;
2. That the Custodian of the records he seeks lied about their nonexistence [.]
According to Ms. Carlton, however, "Louisville Metro Government stands by" its initial response to Mr. Adams and "[Mr.] Harris, Deputy Director of the [LMHD], reiterates that the Department does not have any records that meet the description" initially provided by Mr. Adams.
Moreover, according to Mr. Harris, records such as these were maintained by Mr. Adams while he was an employee within that department; department personnel had difficulty in locating any necessary records during the period of his employment, and cannot verify whether or not all records were even properly maintained. Mr. Harris [also states] that the document that Mr. Adams has submitted was just located, but not within any personnel files relating to Mr. Adams . . . . it was placed within the pages of Mr. Adams' Employee Orientation Manual, and was discovered by accident, within the past two weeks. Other than this document, Mr. Harris states that there have been no records located that fit within the parameters set forth by Mr. Adams in his Open Records request.
The government cannot produce records that are not in its possession. Further, Mr. Adams seems [to already] have possession of the very records that he has requested the government to provide. Therefore, Louisville Metro Government respectfully requests the Attorney General to dismiss Appeal Log No. 200400069, as it cannot comply with the Open Records request, and Mr. Adams already has the records that he purports to seek.
In response, Mr. Adams argues "that it is very odd that a government agency such as the Jefferson County Health Department cannot produce records that regard [his] employment." According to Mr. Adams, "[a]ll records means any and all documents that refer to 'Charles M. Adams,' which would be employment applications, records, e-mails, intra-office e-mails, and documents that have [his] name mention[ed] somewhere in the document." Disputing Mr. Harris's assertions as to his job performance, Mr. Adams contends that the LMHD "based their decision on conjecture and not fact" as evidenced by the Department's inability to "produce documents that [Mr. Harris and Dr. Troutman] relied upon in making their determination as to [his] dismissal." Mr. Adams also denies that his appraisal was discovered in an orientation manual as Mr. Harris contends. 3 In his view, the Department's failure to produce any documents reflecting that his performance fell below acceptable standards supports his theory that discrimination rather than performance was responsible for his termination. In closing, Mr. Adams requests a copy of "the statement that [Mr.] Harris gave to [Ms. Carlton,]" since that "is part of the record which refers to [him]" and neither the Jefferson County Attorney's office nor the Department can deny the existence of that document since Ms. Carlton indicates "that Mr. Harris gave [a] statement referring to [him]." 4
On appeal, Ms. Carlton reiterates that no records exist which are responsive to the subject request and correctly argues that LMHD cannot produce records that are not in its possession. LMHD obviously cannot produce for inspection and copying that which it does not have. 02-ORD-118, p. 3. To clarify, the right to inspect attaches only after the requested records "have been prepared, owned, used, in the possession of or retained by a public agency. " 02-ORD-120, p. 2, citing 97-ORD-18. As consistently recognized by this office, "a public agency cannot provide access to records that it does not have or which do not exist." 03-ORD-205, citing 99-ORD-98; 02-ORD-145; 01-ORD-36; 97-ORD-17; 93-ORD-134. See also OAG 91-203; OAG 91-112; OAG 87-54; OAG 83-111. "Nor is it incumbent on this office to conduct an investigation 5 in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2. An agency discharges its duty under the Open Records Act by affirmatively indicating that the requested records do not exist as LMHD did here. 03-ORD-205, p. 3, citing 99-ORD-98. It is the function of this office to review the course of action taken by a public agency, not to find the documents that a party is seeking to inspect. Id., citing OAG 86-35, p. 5; 02-ORD-145. Said another way, "[w]e are not empowered to go beyond the written record to determine whether [LMHD] employees and officials purposefully attempted to avoid public scrutiny by failing to create a paper trail." 00-ORD-16, p. 5.
In the absence of evidence to the contrary, 6 then, we must assume the truthfulness of LMHD's assertion that no records matching the description originally provided by Mr. Adams exist. With respect to this issue, the Attorney General has observed:
[T]he 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; 00-ORD-16.
In short, the role of the Attorney General in adjudicating an open records dispute is defined by KRS 61.880(2), and we are without authority to deviate from that statute. Although there may be occasions when, consistent with the mandate of KRS 61.8715, this office requests that a public agency substantiate its denial based on the nonexistence of records by demonstrating what efforts were made to locate the records or explaining why no records were generated, when, as is the case here, the agency denies that the records were ever created and the record does not refute that contention, additional inquiry is not warranted. 02-ORD-118; 01-ORD-36; 00-ORD-83; 99-ORD-108.
However, the fact that Mr. Adams may already have copies of correspondence that he generated or received while employed by LMHD does not relieve LMHD of its duty to provide Mr. Adams with access to any of those records also in its possession. 00-ORD-16, p. 4. On at least two occasions, the Attorney General has rejected this argument, holding that "rationale does not support nondisclosure, and is not a legally recognized basis for denying an open records request." Id., citing 99-ORD-121, p. 10. It is only through full disclosure of an agency's records that a requester can satisfy himself that the record is complete. Id. As repeatedly recognized by this office, "a public agency cannot withhold public records from a requester simply because the records may be obtained from another source." 97-ORD-87, p. 4, citing OAG 90-71. Based on the foregoing, we conclude that LMHD erred in partially relying upon Mr. Adams's possession of certain records as a basis for denying access and must disclose any existing records in its possession that are responsive to his request.
Although Mr. Adams thought it was "very clear" that he was requesting access to "all records" regarding his employment rather than strictly those records generated in determining his job performance, both Mr. Harris and Ms. Carlton interpreted his initial description more narrowly, as do we, and responded accordingly. With the exception of the noted error, the response of the LMHD was consistent with the Open Records Act. While Mr. Adams may want to submit a separate, broader request, he cannot expand the parameters of his original request retrospectively since LMHD must necessarily be given an opportunity to respond to the request as revised before we can review the propriety of its actions relative to that request. In short, the issue is not ripe for review. 7
A party aggrieved by this decision may appeal it by initiating an 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 According to the timeline provided by Mr. Adams on appeal, he was hired by the Jefferson County Health Department on December 22, 2003, received a "performance appraisal record" on January 20, 2004, at the end of his 30-day probationary period, and was terminated on February 18, 2004.
2 See 00-ORD-132, a copy of which is attached and incorporated by reference, for insight regarding the accessibility of electronic mail.
3 Regarding factual disputes of this nature between a requester and a public agency, the Attorney General has said:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully, any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-061, citing OAG 89-81.
4 Nowhere in Ms. Carlton's letter does she refer to a written "statement" from Mr. Harris. Although Mr. Adams assumes that such a statement exists, it is equally as likely that Ms. Carlton is referring to verbal statements that Mr. Harris made to her during a conversation regarding this appeal that were not previously documented. Even assuming that such a record does exist, however, it was not generated until after Mr. Adams filed his appeal which necessarily means that it would not be responsive to his original request.
5 In framing his appeal as a request for a "formal investigation," Mr. Adams misconceives the purpose and scope of an open records appeal.
6 In our estimation, the position of the LMHD is credible since verbal exchanges related to performance evaluations are not necessarily reduced to writing so no supporting documentation exists.
7 Any future correspondence between the parties relating to such a request should be guided by 97-ORD-87, a copy of which is attached and incorporated by reference, in which the Attorney General held that former state employees are entitled to access records relating to them under KRS 61.878(3) with noted exceptions.