Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Johnson County School District violated the Kentucky Open Records Act in partially denying Tim Fletcher's written request for a "copy of the records of James Matney's teaching classroom hours, number of students taught, where the students were taught, pay calendars, and what lessons were taught from 2004 through the end of the 2008 school year. " Inasmuch as the District has apparently provided Mr. Fletcher with a copy of all existing records in the possession of the agency which are potentially responsive, and has fully explained the lack of additional records in responding to his appeal, this office has no basis upon which to find a violation. A public agency cannot produce for inspection or copying nonexistent records or those which it does not possess, nor must a public agency "prove a negative" under
Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-41 (2005); likewise, this office is not empowered to resolve a dispute concerning a disparity between the records being sought and those provided.
In response to his request, which the District received on May 11, 2009, Superintendent Steve Trimble advised Mr. Fletcher by letter dated May 29, 2009, that "[o]f the records [he] requested, Jim Matney's schedule and work calendars are the only items available." 1 By letter dated June 8, 2009, Mr. Fletcher initiated this appeal, contending that the information he received "is obviously an attempt to hide the information [he] requested." Mr. Fletcher noted that he did not "receive a class schedule for 2004-2006," that he "asked for the pay calendars and received a summary of work in place of the actual calendars, " and that he "did not receive Mr. Matney's classroom hours, [or] his number of students taught. " 2
Upon receiving notification of Mr. Fletcher's appeal from this office, Michael J. Schmitt, counsel for the Johnson County School Board, responded on behalf of the District. In relevant part, Mr. Schmitt explained:
James Matney is the [F]ootball and [W]restling Coach at Johnson Central High School and has, from the beginning of his employment in 2004 been assigned itinerate teaching duties concerning drug education. Mr. Matney has never had a fixed classroom or a certain number of students to whom he provides periodic drug education and until the 2006-2007 and 2008-2009 [school years] had never been assigned a schedule of any type. As a consequence, the only records which exist that concern Mr. Matney's teaching schedule and when he worked [are] the records provided to Mr. Fletcher.
Mr. Matney rotates periodically between the eight (8) schools within the Johnson County School District and speaks to students who are selected by either the school Principal or some of the Staff members who believe [they] will benefit from Mr. Matney's instruction. No records exist as to the number of students taught, [or] where in any particular building visited by Mr. Matney that such instruction takes place and the District has no records concerning the content of his discussions with the students.
As pointed out in his June 8th Open Records Appeal, Mr. Fletcher filed a Complaint with the Office of Education Accountability concerning Mr. Matney. The Office of Education Accountability conducted an on-site investigation which resulted in a final report dated June [2], 2009. A copy of that report is attached hereto as Exhibit 1. The investigator for the [OEA] had access to all the District[']s records including those requested by Mr. Fletcher. Please see numerical paragraph 5 of the report which sets out the fact that Mr. Matney was not given a specific schedule of classes from the time he was hired for the 2004-2005 school year through the 2005-2006 school year. You will note the absence of records concerning Mr. Matney in the OEA's findings. OEA found no violation of law or policy with respect to Mr. Matney.
Also attached as Exhibit 2 please find a copy of the schedules of the Elementary Band Instructor who is also itinerate and the schedule of itinerate certified employee, Don Howard. While these schedules don't provide much detail as to what these employees are doing, they are identical to and consistent with the schedules provided for James Matney.
Mr. Fletcher has complained that he requested pay calendars but did not receive any documents which were responsive to his request. Pay calendars are only kept, maintained and used as a method of calculating payment to classified employees. James Matney is a certified employee who has a continuing contract of employment with the District. Mr. Matney is paid a recurring salary and no pay calendars are made, kept or maintained for him. A copy of Mr. Matney's continuing contract of employment is attached as Exhibit 3.
In closing, Mr. Schmitt reiterated that Mr. Fletcher "has been furnished all documents in the possession of the School District which are responsive to his request." 3 By letter dated July 1, 2009, Mr. Fletcher challenges the District's partial reliance on Mr. Howard's work schedule, contends that "if you compared the actual band instructor['s schedule] to Mr. Matney's schedule, you would find a detailed report at each grade school [of] the time and number of students taught [,]" asserts that certified employees were required to complete "bi-weekly work calendars during the 2004-2005 and 2005-2006 school years," 4 and finally, disputes the assertion that a truck from a "shredding company" was utilized to destroy records. 5 Noticeably absent from the record is any objective proof to conclusively refute Mr. Schmitt's position that all existing documents in the possession of the District have been provided to Mr. Fletcher. Because the District cannot produce nonexistent records for inspection or copying, nor is the District required to "prove a negative" in order to refute Mr. Fletcher's claim that all existing records have not been provided, this office affirms the agency's ultimate disposition of his request.
As the Attorney General has consistently recognized, a public agency cannot afford a requester access to nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. To clarify, the right to inspect attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. A public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act by affirmatively indicating that no such records exist (or are in the possession of the agency) as the District has repeatedly asserted here. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 99-ORD-98. Under circumstances like those presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2; 04-ORD-205; 94-ORD-140. Rather, KRS 61.880(2)(a) narrowly defines our scope of review.
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records, 6 the Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Our decisions in open records disputes are therefore generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record, and, if so, whether the record is open to public inspection. Simply put, Kentucky's Open Records Act applies to records that are already in existence, and that are in the possession or control of the public agency to which the request is directed. See 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 94-ORD-140 (records of subject investigation not in sheriff's custody because sheriff did not conduct the investigation). When, as in this case, a public agency denies that any responsive documents exist within its custody or control beyond those provided, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83. This office is "not empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability. " 08-ORD-206, p. 1.
In responding to Mr. Fletcher's appeal, the District affirmatively indicated that no additional responsive documents aside from those already provided to Mr. Fletcher and explained why in detail. The District now finds itself in the position of having to "prove a negative" in order to conclusively refute Mr. Fletcher's claim that additional records exist. Addressing this dilemma, in
Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), the Kentucky Supreme Court observed:
The Open Records Act is silent as to the procedure to be followed when a requester seeks to enforce the Act over a public agency's denial of the record's existence. The Act contemplates that an agency will deny an open records request when it believes that the requested records are exempt, but it does not envision a situation . . . where the agency claims that the records do not exist.
. . .
[T]he best way to uphold [the basic policy of the Act, recognizing "that free and open examination of records is in the public interest," when an agency denies the existence of the requested records] is to ensure that the complaining party has an opportunity to disprove a public agency's denial of the existence of records . . . To hold otherwise could remove accountability from the open records process, allowing public agencies to avoid judicial review by denying a record's existence altogether rather than claiming a statutory exemption.
Nevertheless, the Court continued:
[T]he General Assembly has also evidenced a concern that public agencies not be unreasonably burdened and that essential functions not be disrupted by open records requests. KRS 61.872(6). The unfettered possibility of fishing expeditions for hoped-for but nonexistent records would place an undue burden on public agencies. In order to refute a complaining party's claims to a nonexistent record, the agency would essentially have to prove a negative, presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives.
For these reasons, the Court determined "that before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist." 7
In a series of decisions issued since Bowling, this office has been obliged to affirm public agency denials of requests based upon the nonexistence of responsive documents in the absence of a prima facie showing that documents being sought did, in fact, exist in the possession of the agency. See, e.g., 06-ORD-042; 07-ORD-188; 07-ORD-190; 08-ORD-189. Because the instant appeal presents no reason to depart from this approach, the same result follows here. In our view, the analysis contained in 07-ORD-188 and 07-ORD-190 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. In the absence of the requisite prima facie showing, the District's response must be upheld in accordance with
Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), and prior decisions of this office such as 07-ORD-188 and 07-ORD-190. To hold otherwise would result in the District "essentially hav[ing] to prove a negative" in order to refute a claim that additional records exist. 07-ORD-190, p. 7. As the Attorney General has long recognized, this office cannot "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 the Act. OAG 89-81, p. 3. In other words, to the extent Mr. Fletcher has questioned the volume, content or value of the records produced, such an issue is not justiciable in this forum; rather, "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3; 04-ORD-032; 02-ORD-89.
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.
Tim FletcherStephen A. TrimbleMichael J. Schmitt
Footnotes
Footnotes
1 By failing to issue a detailed written response within three business days, the District violated the mandatory terms of KRS 61.880(1). With regard to application of this provision, the analysis contained in 07-ORD-187 is controlling; a copy of that decision is attached hereto and incorporated by reference. To avoid future violations of KRS 61.880(1), the District should be guided by the longstanding principle that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. Because Mr. Fletcher does not raise this procedural issue, nor is there any evidence of bad faith, this office will not belabor the point since the law in this area is well-established.
2 As the Attorney General has repeatedly observed, a public agency's "inability to produce records due to their nonexistence is tantamount to a denial, and it is incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9. While a public agency cannot furnish that which it does not have, "a written response that does not clearly so state is deficient." Id. Insofar as the District initially failed to affirmatively indicate that additional records not only were not "available," but did not exist, and offered no explanation, its response was deficient.
3 Although Mr. Fletcher suggested in his letter of appeal that perhaps the District had improperly shredded responsive documents, it suffices to say that Mr. Schmitt has refuted Mr. Fletcher's assertion with supporting documentation. In any event, such an issue is beyond our narrow scope of review under KRS 61.880(2)(a); therefore, further discussion is unwarranted.
4 Mr. Fletcher misconstrues the function of this office in arguing that "any reasonable investigation would reveal this fact by asking any certified individual that was employed by the school during that time (excluding board office employees and relatives)." Contrary to Mr. Fletcher's implicit assertion, KRS 61.880(2)(a) does not authorize this office to conduct investigations, gather evidence, interview witnesses, conduct hearings, etc.; rather, the Attorney General "shall review the request and denial and issue within (20) twenty days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of [the Open Records Act] ."
5 Mr. Fletcher concedes that he is unable to "prove what they destroyed." Although the "circumstances surrounding recent events make the timing very questionable" in his view, this office does not engage in speculation regarding unsubstantiated allegations nor is the Attorney General able to resolve factual disputes of this nature.
6 See KRS 61.8715.
7 Black's Law Dictionary, 1071 (5th ed. 1979), defines prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."