Request By:
Barbara Schwarz
335 East Broadway, Apt. 401
Salt Lake City, UT 84111Donald S. Dott, Jr.
Executive Director
Kentucky State Nature Preserves Commission
801 Schenkel Lane
Frankfort, KY 40601William Emrick
General Counsel
Environmental and Public Protection Cabinet
Capitol Plaza Tower
Mero Street
Frankfort, KY 40601
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the actions of the Kentucky State Nature Preserves Commission relative to the request of Barbara Schwarz for any records relating to her, Mark C. Rathbun, Mark de Rothschild, Scientology, the Church of Scientology or its deceased founder, L. Ron Hubbard, or former President Dwight David Eisenhower, violated the Kentucky Open Records Act. Because the KSNPC has "no records referring to, sent to or from, or otherwise mentioning any of" the named individuals or the Church of Scientology, and affirmatively indicated as much to Ms. Schwarz in a timely response, the KSNPC fulfilled its obligation under the Open Records Act.
On November 17, 2003, Ms. Schwarz directed the following request to Don Dott, Executive Director of the KSNPC, 1 via electronic mail: 2
I request under the Freedom of Information Act/Privacy Act, but also your state's records laws, a copy of [the] following records:
1) Any records on me, Barbara Schwarz, and also the often misspelled version of my name, Schwartz
2) Any records on Mark C. Rathbun and also the name Mark de Rothchild
3) Any records on Scientology, or Church of Scientology
4) Any records on [its] deceased founder L. Ron Hubbard
5) Any records on the former [P]resident Dwight David Eisenhower.
Search in all your departments, offices, [and] all records systems from present time as far back as you can, but don't incur any fees without my consent.
Feel free to forward this request to any department, division, [or] agency [] which you think might have records [that are responsive] to this request.
Please acknowledge the receipt of this request right away and inform me [of the] file number [for] this request.
As evidenced by the foregoing, the KSNPC was not required to respond to Ms. Schwarz's request since she did not submit the request via any of the statutorily recognized methods, namely, hand-delivery, U.S. Mail, or facsimile. In choosing to respond, however, the KSNPC waived any issue regarding the method of submission. Accordingly, our analysis will focus on the merits of Ms. Schwarz's claim since she has now complied with KRS 61.880(1) and KRS 61.872(2) in filing her appeal.
In an e-mail dated November 19, 2003, Mr. Dott advised Ms. Schwarz as follows:
This is the response of the [KSNPC], Don Dott, and Greg Abernathy to your November 17, 2003 email requesting agency records pertaining to five individuals and/or organizations. In [order] that we may provide the records you have requested, we need additional information. Specifically, please tell me the relationship, if any, between [KSNPC] and any of the individuals named (i.e., in categories 1, 2, 4 and 5). For example, were any of the people employees of the KSNPC at one time?
We do not have any records pertaining to Scientology or the Church of Scientology.
As evidenced by the record on appeal, Ms. Schwarz did not respond to Mr. Dott's request for a more specific description of the requested records until almost six months later. In an e-mail dated May 11, 2004, Ms. Schwarz inquired as to the status of her request, informing Mr. Dott that he did not "have to search the personnel records" because "nobody on [her] list was ever employed by [the KSNPC,]" but "[the KSNPC] could have other records, public re[cords], subpoenas, request[s] for records [], general correspondence, complaints, e[-mails, etc.]" 3 Ms. Schwarz also revised her request as follows:
Please explain to me briefly your records systems and in what systems a search was conducted, by whom, [of] what names, [the] subject and time period.
I also request a copy of the internal records that you received and generated during the search.
Provide me with a search certificate/ declaration as to how [the] search was conducted and by whom and that no records were withheld.
In closing, Ms. Schwarz also inquired as to whether Mr. Dott or anyone else within the KSNPC had recently been contacted by "an attorney of Mark Rathbun (de Rothchild) or another attorney asking [him] with inquiry or subpoena for a copy of [their] correspondence [,]" because she thinks "they tr[ied] to locate [her to be a] witness in a federal case[,]" further requesting that Mr. Dott mail "a copy of those papers" to her.
In a timely "supplemental response," Mr. Dott advised Ms. Schwarz, in relevant part, as follows:
After conducting two personal searches of files and records meeting the description of your two requests, and after ordering a thorough search by all KSNPC employees of all of their files and records, I must inform you that we have no records referring to, sent to or from, or otherwise mentioning any of the individuals you have listed or the Church of Scientology.
To my knowledge, no one at KSNPC has been contacted by Mark Rathbun, anyone representing him, or Mark de Rothchild. Likewise, no one has seen or been sent a subpoena or written inquiry for correspondence between you and this office.
As correctly observed by Mr. Dott, the Open Records Act contains "no provision or requirement for agencies or their employees to prepare or maintain 'search certificates' or 'search declarations, '" Ms. Schwarz's assumption to the contrary notwithstanding. In closing, Mr. Dott reiterated that no responsive records were located, "and thus no records were withheld. " Ms. Schwarz now appeals from the KSNPC's disposition of her request.
In a letter dated May 17, 2004, Ms. Schwarz simultaneously challenges comparable determinations by the six public agencies, including the KSNPC, to which she submitted identical requests in November 2003. Not surprisingly, Ms. Schwarz raises essentially the same six arguments in support of each appeal, all of which reflect her fundamental misconception of the duties that public agencies must perform under the Open Records Act. According to Ms. Schwarz:
1. Neither Mr. Dott nor anybody within the KSNPC handled my request lawfully. They did not inform me [of] my file number.
2. Then KSNPC provided no evidence whatsoever of the search. They withheld all internal records or never generated them as [the] search was not adequate. Where are the internal records that are naturally generated in such [a] search, [such] as e-mails, notes, computer printouts, memoranda, fax transmittal sheets, work and processing sheets, logs, etc." If it is true that two searches were conducted with all employees involved, they must have generated a papertrail that they [are] illegally withhold[ing] from me. If they did not generate[] any papertrail, the question[] would be why they avoided [generating] one.
3. I have no clue [] what records systems [were] searched for the records [corresponding] to the names in my first request, [or] who searched for subpoenas or inquiries and in what offices and what time period.
4. They did not explain their records systems as requested.
5. They provided no search declaration/ certificate, [so there] is no evidence of good faith.
6. I received records pertaining to my request from agencies. Some also thought they [had] no records, but after they conducted [a] good faith search, they found them. It seems that [KSNPC] conducted no lawful or adequate search, but just unlawfully assumed [they had] no records as they are unable to provide evidence of their two searches.
Citing
Steinberg v. United States, Department of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994), among other federal authorities, Ms. Schwarz further argues that an "agency must be able to show what records were searched, by whom, and through what process," and "[n]o Kentucky state agency should operate below this federal standard."
Upon receiving notification of Ms. Schwarz's appeal from this office, Barbara M. Pauley, staff attorney at the Environmental and Public Protection Cabinet, elaborated on the position of the KSNPC. 4 As correctly observed by Ms. Pauley:
In telling Ms. Schwarz there were no records responsive to her request, KSNPC neither denied her access to records nor violated the Kentucky Open Records Act. Ms. Schwarz's overly broad request was not directed to an agency. It sought unspecified information pertaining to individuals and organizations that had nothing to do with Kentucky or the business of the KSNPC. Agencies are not obligated to honor requests for information, as opposed to requests for specifically described records. 02-ORD-213; KRS 61.872(1). If someone cannot describe the documents she wishes to inspect with sufficient specificity, there is no requirement that an agency conduct a search for such material. 99-ORD-225. Nonetheless, KSNPC consistently responded in good faith to Ms. Schwarz's repeated inquiries, in compliance with KRS 61.872(1).
Therefore, the KSNPC "strenuously objects" to Ms. Schwarz's appeal, and disputes each of her contentions in turn:
1. KSNPC emphatically denies that any of its employees have acted unlawfully in dealing with Ms. Schwarz. Further, there is no legal requirement that a "file number" be created to satisfy or respond to an open records request.
2. Ms. Schwarz has no basis for claiming that KSNPC personnel "withheld all internal records" or that they failed to honor some legal obligation to generate them. Ms. Schwarz's request generated no documents because none exist, and Kentucky agencies are not required to generate records or create documents to satisfy a request. 02-ORD-112. Although there is no legal requirement that agencies produce copies of internal communications concerning in-house efforts to locate documents, in an effort to demonstrate KSNPC's good faith, attached are copies of two e[-]mails from Mr. Dott to his staff. Note that the first of these was sent even without the benefit of clarification from Mr. Schwarz during the six-month hiatus.
3. Ms. Schwarz has no basis for assuming that subpoenas exist within KSNPC's files and that these or any other records were improperly withheld. She was not denied access; the individuals and entities named in her request simply do not appear in any KSNPC records.
4. The Kentucky Open Records Act does not require that agencies responding to requests explain their "records systems."
5. The Kentucky Open Records Act does not require agencies to provide a "search declaration/ certificate" when responding to an open records request.
6. In compliance with the Kentucky Open Records Act, KSNPC timely notified Ms. Schwarz that it had no records pertaining to Scientology or the Church of Scientology, and requested further clarification on how the four individuals named in her request might have any connection with KSNPC, since no records had surfaced [] and the names did not sound remotely familiar. This does not amount to bad faith or a failure to honor legal requirements. KSNPC attempted in good faith to find a connection between Ms. Schwarz's request and KSNPC or the state of Kentucky. Good faith is a two-way street.
Based on the following authorities, we conclude that the actions of the KSNPC were, in every respect, consistent with both the letter and spirit of the Open Records Act.
Although Ms. Schwarz filed her request "under the Freedom of Information/Privacy Act," as a "public agency" under KRS 61.870, the KSNPC properly treated Ms. Schwarz's request as a request for public records 5 submitted pursuant to the Kentucky Open Records Act, and relied upon binding decisions issued by this office 6 applying the Act in responding to Ms. Schwarz's request. In
Ferguson v. Alabama Criminal Justice Information Center, 962 F.Supp. 1446, 1447 (M.D. Ala. 1997), the United States District Court conclusively resolved this threshold issue, holding that neither 5 U.S.C. § 552, the Freedom of Information Act, nor 5 U.S.C. § 552(a), the Privacy Act, apply to state agencies. Contrary to Ms. Schwarz's assertion, therefore, public agencies in Kentucky such as the KSNPC are not governed by the "federal standard" to which she refers on appeal. Accordingly, our analysis focuses exclusively on whether the KSNPC complied with the Kentucky Open Records Act beginning with its contention that Ms. Schwarz's request was "overly broad."
As long recognized by the Attorney General, and correctly argued by the KSNPC on appeal, an agency is not obligated to honor a request that is properly characterized as a request for information as opposed to a request for specifically described records because the "Kentucky Open Records Act addresses requests for records, not requests for information." 02-ORD-88, p. 2. Elaborating upon this principle, we have observed:
Requests for information, as distinguished from records, are outside the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request.
95-ORD-131, p. 2.
Historically, this office has criticized "open-ended-any-and-all-records-that-relate-type requests" relating to a particular subject(s) or individual(s) such as the request at issue. 03-ORD-040, p. 2; 99-ORD-14; 96-ORD-101. In addressing this issue, the Attorney General has recognized:
A request for any and all records that contain a name [as is the case here], a term, or a phrase is not a properly framed open records request, and . . . it generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispensed and ill-defined records.
99-ORD-14, p. 5 (Emphasis added); 03-ORD-040. In 94-ORD-12, this office articulated the following standard for determining whether a requester has described the records sought with sufficient precision:
The purpose and intent of the Open Records Act is to permit the "free and open examination of public records. " KRS 61.871. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he or she wishes to review. OAG 91-58; OAG 89-81; OAG 92-56. Thus, if a public agency is to provide access to public documents, the requester must identify them with sufficient clarity to enable the agency to locate and make them available. If the requester cannot describe the documents he wishes to inspect with sufficient specificity, there is no requirement that the public agency conduct a search for such documents.
Id., p. 3 (Emphasis added); 02-ORD-246, p. 3; 99-ORD-14, p. 4. "Where the records sought are of an identified, limited class, the request satisfies this condition." 99-ORD-14, p. 4, citing 92-ORD-1261, p. 3. Such is not the case here.
Even a cursory review of Ms. Scwharz's initial request reveals that the records to which she requested access were not identified with "reasonable particularity, " nor were the records of an "identified, limited class" as required for the KSNPC to locate the records and make them available for inspection. That being the case, it stands to reason that Ms. Schwarz's description is not sufficiently "definite, specific, and unequivocal" or "precise," the intentionally higher standard that a requester must satisfy in order to access records by mail. 7 Given this lack of specificity, the KSNPC could not estimate the number of records encompassed by the request or the amount of time its employees would be required to expend in locating, retrieving, and producing the records assuming such records existed. In order to comply with a request for "any records" relating to Ms. Schwarz, the named individuals, Scientology, or the Church of Scientology, the KSNPC would be required to review every record, "regardless of physical form or characteristics," which was "prepared, owned, used, in the possession of or retained by [it]," to determine if the record references or otherwise relates to any of the above. Such a request is properly characterized as a "request for research to be performed, rather than for inspection of reasonably identified public records, " and this office has consistently recognized that the Open Records Act "[does] not require public agencies to carry out research or compile information to conform to a given request." OAG 89-45, p. 3, citing OAG 79-547 and OAG 83-333. Nonetheless, the KSNPC has "consistently responded in good faith to Ms. Schwarz's repeated inquiries[.]"
Although "it is the legislative intent that public agency employees exercise patience and long-suffering in making public records available for public inspection, " the KSNPC has fulfilled that obligation here as documented in the record on appeal. OAG 77-151, p. 3. More specifically, Mr. Dott personally conducted a search of all files and records that were potentially responsive to Ms. Schwarz's request as originally framed and repeated the process upon receiving her belatedly revised version, 8 but also ordered a "thorough" agency wide search of all files and records, none of which revealed any documents fitting the description provided by Ms. Schwarz as affirmatively indicated by the KSNPC in its response. No more is required. Public employees "are the servants of all the people and not only of persons who make extreme and unreasonable demands on their time." OAG 76-375, p. 4.
On appeal, the KSNPC further argues that "no records were generated because none exist, and Kentucky agencies are not required to generate records or create documents to satisfy a request." We agree. The Open Records Act "has never been construed to require the creation of a record." 02-ORD-112, p. 4; 97-ORD-56; 96-ORD-139; 95-ORD-48. To the contrary, this office has consistently held that a public agency is not obligated to compile a list or create a record to satisfy an open records request. 02-ORD-88, p. 2; See e.g. 96-ORD-251; OAG 90-101; OAG 76-375. As to the issue of how specific a public agency must be in denying the existence of records identified in an open records request, the Attorney General has held that a public agency's response is insufficient under KRS 61.880(1) " if it fails to advise the requesting party whether the requested record exists," 98-ORD-154, p. 2, citing 97-ORD-161, p. 3 (Emphasis added), with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively so indicating as repeatedly recognized by this office. 04-ORD-046, p. 4; 03-ORD-205, p. 3, citing 99-ORD-98.
According to the KSNPC, the requested records do not exist. "It stands to reason that an agency cannot afford a requester access to records that it does not have or which do not exist." 04-ORD-046, p. 4; 00-ORD-83, p. 6, citing 99-ORD-108. Because the inability of the KSNPC to produce these records "due to their apparent nonexistence is tantamount to a partial denial" of Ms. Schwarz's request, however, it was incumbent on the KSNPC to so indicate "in clear and direct terms." 02-ORD-145, p. 3, citing 01-ORD-38; 03-ORD-220; 00-ORD-83; 97-ORD-16; 96-ORD-164; OAG 91-101; OAG 86-38. "While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient." 03-ORD-220, p. 2 (Citation omitted).
At issue in 96-ORD-101 was whether a request for "such records as will provide the basis for . . . [the] statement, as referenced in the . . . Courier-Journal article dated February 23, 1996, that city officials estimate the cost of responding to open records requests filed by me and my family at $ 316,250 over the past five years" was sufficiently specific to require an unequivocal response. Because the requester had not requested a specific record, but had instead made an "open-ended-any-and-all-records-that-relate-type of request," as Ms. Schwarz did here, we held that the city's general denial of the request was appropriate. In so doing, we observed:
Because [the requester] did not identify a specific record or records which he wished to inspect, or describe such records with reasonable particularity, the city could not advise him whether they exist. To paraphrase an earlier open records decision, [the] request was so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass.
Id., p. 3, citing OAG 91-58. "To require an unequivocal denial of a nonspecific request for records, is to impose a burden on the public agency which no custodian of records, or individual acting under his authority, can practically discharge." 03-ORD-243, p. 6, citing 96-ORD-101, p. 3.
Assuming that the [KSNPC] made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," therefore, we conclude that the agency fully discharged its statutory duty by notifying Ms. Schwarz that the searches performed by Mr. Dott and his staff revealed no responsive records. Id. OAG 90-26; OAG 86-38; 02-ORD-144; 01-ORD-38; 97-ORD-161. When an agency denies the existence of requested records, it is not our duty to investigate in an attempt to locate the records absent a reason to question the truthfulness of the agency's assertion. See 02-ORD-144 and 94-ORD-140. Here, the record supports rather than refutes the agency's statement to that effect which is more than credible given the nature of Ms. Schwarz's request. Although there are occasions when the Attorney General requests that an agency substantiate its denial based on the nonexistence of requested records by demonstrating the efforts made to locate the records or explaining why no such records were generated consistent with the mandate of KRS 61.8715, further inquiry is not warranted on the facts presented. KSNPC "cannot produce that which it does not have" and affirmatively indicated as much to Ms. Schwarz thereby satisfying its statutory obligation. 99-ORD-108, p. 3. Because the actions of the KSNPC relative to Ms. Schwarz's request were otherwise consistent with the provisions of the Open Records Act, we affirm its disposition of Ms. Schwarz's request. 9
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 Mr. Dott serves as both the Executive Director and the Custodian of Records at the KSNPC where he supervises a staff of 19 people, and, therefore, "is familiar with the kinds of records maintained at KSNPC and the organizations with which the KSNPC corresponds and does business."
2 In letters dated October 17, 2003, and May 6, 2004, this office advised Ms. Schwarz that "the Uniform Electronic Transactions Act, codified at KRS 369.101, et. seq ., provides that each party to a transaction conducted by electronic means must agree to the electronic transaction." At KRS 369.105(2), UETA provides:
Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties' conduct.
As we observed in each instance, "[t]he term 'transaction' is defined at KRS 369.102(16) as 'an action or set of actions occurring between two (2) or more persons relating to the conduct of business, commercial, or governmental affairs.' The term 'governmental affairs' extends to open records transactions, including both open records requests and appeals ." (Emphasis added). To reiterate, "KRS 369.118(3) expressly provides that a governmental agency of the state of Kentucky is not required 'to use or permit the use of electronic records or signatures.' This law, and the Attorney General's policy with respect to emailed open records appeals, is unchanged."
3 Attached to both Ms. Schwarz's letter of appeal and the KSNPC's supplemental response are hard copies of the correspondence which culminated in this appeal. Unfortunately, the final word(s) of each line in several of the e-mails is either partially or entirely missing from both copies. Although we have attempted to deduce the correct word(s) based on the context of the messages in which the words were intended to appear and none of the missing language is critical in this instance, such omissions typify the difficulties associated with relying upon e-mails that can be avoided by utilizing one of the statutorily recognized methods of correspondence.
4 Upon receiving a copy of the KSNPC's supplemental response, Ms. Schwarz attempted to submit her own supplemental response via an e-mail dated June 5, 2004, which basically amounts to a repeat of her earlier arguments. In any event, the Attorney General does not accept electronic correspondence in the context of an open records appeal for the reasons set forth at footnote 2 and, therefore, Ms. Schwarz's e-mail would not alter our analysis even if the content warranted consideration.
5 For purposes of the Open Records Act, a public record is defined as:
. . .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. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority[.]
KRS 61.870(2).
6 KRS 61.880(5)(b) provides:
If an appeal is not filed within the thirty (30) day time limit, the Attorney General's decision shall have the force and effect of law and shall be enforceable in the Circuit Court of the county where the public agency has its principal place of business or the Circuit Court of the county where the public record is maintained. (Emphasis added).
7 In 99-ORD-225, this office observed:
Clearly, the Attorney General has gone to great lengths to define what constitutes an adequate "descri[ption]" for purposes of on-site inspection pursuant to KRS 61.872(2). We have not, however, had occasion to articulate a standard for determining if a requester has described the records he wishes to access by mail with "precis[ion]."
A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside Dictionary 926 (1988); "strictly defined; accurately stated; definite, " Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963). We believe that a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in definite, specific, and unequivocal terms the records he wishes to access by mail.
Id., citing 97-ORD-46, pp. 3, 4.
8 Because Ms. Schwarz not only failed to comply with KRS 61.872(2), but also substantially amended her request, the KSNPC was not required to address her additional concerns. 03-ORD-19, p. 3.
9 Having considered the secondary arguments raised by Ms. Schwarz in their entirety, including her demand for an explanation of the agency's "records systems" and a "search declaration/ certificate, " suffice it to say that none warrant further elaboration.