Request By:
Glenn S. Hayden
Rodney S. Pearce
Brady M. Link, Jr.
David L. Hargrove
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Graves County School District violated the Open Records Act in denying, in part, Glenn S. Hayden's February 27, 2008, request for records and reports relating to District purchasing cards, and denying, in full, his March 5, 2008, request for records relating to District records management practices. For the reasons that follow, we find that the District did not violate the Act in denying that portion of Mr. Hayden's request relating to purchasing records and reports for the period from June 2003 to June 2004 on the basis that the records no longer exist, but that its inability to produce records relating to the destruction of those records, although not a violation of the Act, suggests deficiencies in its records management practices. Because the District's records management practices are already under review by the Kentucky Department for Libraries and Archives, as a result of our decision in 08-ORD-056, 1 we do not refer this matter to the Department.
In responding to Mr. Hayden's February 27 records application, the District released the requested December 2007 and January 2008 purchasing card statements, supporting documentation, and audit reports, but advised that the June 2003 through June 2004 records "were destroyed in concordance [sic] with state record retention guidelines . . . [which] allow destruction of accounts payable records after three years." In support, the District attached a copy of the applicable retention schedule.
This response apparently prompted Mr. Hayden to seek documentation relating to District records management and destruction practices which the District was unable to produce. Specifically, the District denied the existence of correspondence identifying the District's records officer(s) from June 1997 to the present, "annual reports for the destruction of . . . all purchase card statements and supporting documentation and purchase order files" for this period, "records destruction certificates for these records" for this period, "draft, new, and revised schedules" for this period, and description and analysis forms for purchase cards and purchase orders for this period. The District explained that "[n]o such records exist, nor have they ever existed."
Shortly thereafter, Mr. Hayden initiated this appeal, questioning the destruction of the 2003-2004 records within ten months of the issuance by this office of an open records decision involving the same records and in which the District acknowledged the records' existence as of April 18, 2007. 2 Citing KDLA's "Managing Government Records" 725 KAR 1:010, 1:020, and 1:030, various provisions of Chapter 171, and Graves County School Board Policy 01.61, he also questioned the District's records management practices, and, in particular, its failure to generate records "that are required" by these policies and legal authorities.
The Graves County School District did not violate the Open Records Act in denying Mr. Hayden's request for purchasing records and reports generated in the period from June 2003 to June 2004. The District denied this portion of his request on the basis that the records had been destroyed pursuant to the applicable retention period established in the Public School District Model Records Retention Schedule. According to that Schedule, Series L5294, Accounts Payable File, "is used to document the requisitioning, purchasing, and remitting process," and is said to include "orders of the treasurer, lists of claims, claims, claim stub books, requisitions, purchase orders, vendor invoices, receipts, travel requests, travel vouchers, voucher copies, check copies, receiving orders, receiving reports, case receipt registers, treasurers receipt books, and supporting documentation. " Such records must be retained at the agency for three years with instructions that they be destroyed after audit. Our discussions with a representative of the Department for Libraries and Archives have confirmed that this is the applicable records series for the requested records, and that destruction of the records was consistent with proper records retention and management practices.
As this office has so often noted, "a public agency cannot afford a requester access to a document which does not exist or which it does not have in its possession or custody." 93-ORD-51, p. 4. In general, it is not our duty to investigate in order to locate documents which the requesting party maintains exist, but which the public agency states do not exist. The Kentucky Open Records Act was amended in 1994, and now recognizes "an essential relationship between the intent of [the Act] and that of KRS 171.740 , dealing with the management of public records . . . ." KRS 61.8715. Although there may be occasion when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record exists, we do not believe that this appeal warrants additional inquires. Because the purchase card records and reports were properly destroyed in the normal course of business, their nonexistence does not raise records management issues. Whatever negative inferences he may draw from the District's action, the District's response to this portion of Mr. Hayden's request was consistent with the provisions of the Act insofar as it cannot make available for inspection documents which it no longer has in its possession.
As a consequence of the District's inability to produce these purchasing records and reports, Mr. Hayden subsequently submitted a request for documents relating specifically to the destruction of these records and generally to the District's records management practices. The District candidly acknowledged that the requested records do not now exist nor have they ever existed. Pursuant to KRS 61.8715, all public agencies are required "to manage and maintain [their] 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:
Under the provisions of the Archives and Records Act, "[t]he 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 171.740." KRS 171.710. These safeguards include "making it known to all officials and employees 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 .
94-ORD-121, p. 8. The District's own website, http://www.graves.k12.ky.us/ , contains an online manual with extensive policies and procedures governing District records management practices which were "Adopted/Amended: 07/16/2007 Order # : 5." At 01.61 of the section entitled "Powers and Duties of the Board of Education," the District's records officer is directed to "inventory, analyze and schedule disposition of District's record, as well as maintain a destruction record, noting the authorization for said destruction and the amount of records to be destroyed. " Citing 725 KAR 01:010, this policy further requires the records officer to "provide a copy of this record to the Board (Superintendent) and to the Director of the Division of Archives and Records." Pursuant to 01.61 AP.1, 1. and 2., of the procedures for records management, the superintendent or his designee is responsible for "notify[ing] the Public Records Division in the Department for Libraries and Archives of the name of the District's Records Officer who shall represent the District in its relations with that Division" and who "shall prepare a records retention and disposal schedule for the District that is compatible with state statutes and regulations. " Parts 4. and 5. of 01.61 AP.1 of the district's policies mandate disposal of records that have met the retention schedule within six months after the required retention period and supervision of destruction by the Records Officer "who shall keep a log of all disposed records."
The inability of the Graves County School District to produce, inter alia , a destruction record (certificate) , for the purchasing records and reports, notification of the name of the District's Records Officer, and a destruction log, does not constitute a violation of the Open Records Act, insofar as it cannot produce records that never existed, but is indicative of a failure to comply with District and State records management requirements. Accord, 02-ORD-149 (Elsmere Police Department fails to file destruction certificate with KDLA following destruction of all departmental records by a virus that infected its computer); 07-ORD-008 (Hopkins County Sheriff's Department fails to document proper destruction of officers' activity reports with KDLA). Because its records management practices are already under review by KDLA, we will not refer this matter to the Public Records Division but trust that through their joint efforts these deficiencies will be corrected.
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 08-ORD-056, In re: Glenn S. Hayden/Graves County School District.
2 07-ORD-105, In re: Kelly Whitaker/Graves County Board of Education.