Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Kirk Catinna initiated this appeal by letter dated March 31, 2016, challenging the disposition by the Woodford County Public Schools ("WCPS") of his July 8, 2015, e-mail request 1 for a copy of a Kentucky Daily School Bus Incident Report ("Incident Report") documenting the May 23, 2014, incident that happened on Leestown Road near the intersection of Leestown Road and Weisenberger Mill Road at 3:10 p.m. involving a Woodford County School Bus driven by Ruby Hilton "and all revisions that may have been filed on later dates." On July 10, 2015, WCPS Director of Transportation Kay Tegethoff advised Mr. Catinna that she was attaching the requested Incident Report dated May 23, 2014. Mr. Catinna subsequently asked Ms. Tegethoff to "reread the email I sent you. I requested a School Bus Incident Report and provided you with information and data that should be in the School Bus Incident Report that I want." Mr. Tegethoff promptly confirmed that she had previously attached the file containing the Incident Report "submitted to the Kentucky Department of Education ["KDE"] for the accident dated May 23, 2014 involving Ms. Hilton. The report I sent to you is the only required report that is to be submitted[.]" Nevertheless, Ms. Tegethoff provided another copy of the Incident Report.
Mr. Catinna then inquired as to whether school bus drivers are required to file an Incident Report for each incident where a school bus is involved. Because the incident Mr. Catinna was "interested in took place in Scott County," he also questioned whether the "report would have been filed with local school authorities there." Ms. Tegethoff promptly replied to his request for information, asking whether it was possible that Mr. Catinna wanted the "police report" [Uniform Police Traffic Collision Report]." School bus drivers are required to report any incident/accident to their supervisor, Ms. Tegethoff explained, and then "it is the responsibility of the Driver Trainer or Director to report the information to KDE by way of the report I sent to you." Mr. Catinna stated that he already had a copy of the police report generated by the Scott County Sheriff's Department and reiterated that he "would appreciate a copy of the School Bus Incident [R]eport as a companion to the police report. " Ms. Tegethoff promptly advised that the 2014-2015 school year was her first at WCPS. Accordingly, she was not employed at WCPS when the incident occurred nor, therefore, did she provide the required information to KDE. Ms. Tegethoff explained that she obtained the Incident Report directly from KDE and reiterated that she had provided "the only report of the incident that was submitted to KDE."
Following that exchange, Mr. Catinna again requested additional information by e-mail dated July 13, 2015, specifically the "complete day route for bus # 55" on May 23, 2014, and the name and contact information of the WCPS employee who submitted the Incident Report to KDE. Ms. Tegethoff ultimately advised that the "incident reporting for school bus incidents/accidents is an online process" through KDE. "There are no originals of the report as it is entered online, " Ms. Tegethoff continued, "which is the report I sent you already. The only other report I have on file is the police report and you said you already had it." Ms. Tegethoff also explained that the "only people authorized to enter the data for school bus incidents are driver trainers [and/or] directors. I called KDE to obtain the information on who submitted this report and was advised that they have no way of knowing." Both the Driver Trainer and the Director who may have submitted the information contained in the requested Incident Report have retired, Ms. Tegethoff noted, and "I do not feel comfortable in giving out those names as they are no longer employed" at WCPS. 2 Finally, Ms. Tegethoff advised Mr. Catinna that she did not have the "day route" information that he requested.
Mr. Catinna replied that Ms. Tegethoff's latest response caused him to have more "questions" and he made four additional "inquiries" by e-mail dated July 24, 2015. In particular, Mr. Catinna questioned the discrepancies that he perceived between the "number of data elements reported on" the Incident Report and those contained in the Annual School Bus Incident Report. Mr. Catinna asked which police report Ms. Tegethoff was referring to and requested that she provide him "with the title of the report" and the law enforcement agency that generated it as well as contact information for the "source of information" regarding the daily routes of school buses at either the local or state level. Finally, Mr. Catinna asked how many years Ms. Tegethoff had been employed "in the position of Bus Trainer and/or Immediate Supervisor of Bus Driver" at WCPS. 3 Ms. Tegethoff advised that she began working for WCPS on July 1, 2014, and responded to each of Mr. Catinna's other questions.
Upon receiving notification of Mr. Catinna's appeal, Grant R. Chenoweth responded on behalf of WCPS in his capacity as legal counsel for the Woodford County School Board. Mr. Chenoweth correctly observed that the "gist" of Mr. Catinna's appeal "is that he is dissatisfied with the document he received from [WCPS] and believes a different or additional document should exist." WCPS affirmatively denied "the existence of any other document responsive to Mr. Catinna's request beyond the document entitled 'Kentucky Daily School Bus Incident Report' which was attached to his appeal." Mr. Catinna's belief that another document exists, Mr. Chenoweth noted, "is apparently based on the time of the accident having been identified in the report as 7:10 a.m. rather than 3:10 p.m. -- the time Catinna claims the accident actually occurred." Rather than accept the possibility that a data entry mistake was made when the accident was initially reported, Mr. Catinna has assumed the driver had two accidents on the same day, Mr. Chenoweth stated, and that WCPS denied access to the Incident Report concerning the second accident. However, there is no evidence of two accidents nor is there any evidence that a responsive document exists to which Mr. Catinna was denied access.
"Despite the absence of any requirement for an agency to respond to a request which only seeks information rather than a readily identifiable record," Mr. Chenoweth correctly observed, Ms. Tegethoff responded to each of Mr. Catinna's questions on two separate occasions. Ms. Tegethoff either provided the requested information or advised that no responsive document existed in response to his July 13, 2015, e-mails, with the exception of the now retired employees who may have provided the Incident Report to KDE. Ms. Tegethoff "endeavored to respond in good faith, seeking clarification as to his first inquiry and providing the information as to his remaining inquiries" in response to his July 24, 2015, e-mail. Mr. Chenoweth again confirmed that WCPS does not have any other documents responsive to Mr. Catinna's request and reiterated that his allegation regarding the existence of additional documents is unfounded. 4 There is no evidence to suggest that two separate accidents occurred on the same day involving the same bus and driver, "one of which was reported to KDE and the other of which was concealed. There is evidence that a single accident occurred which was timely reported to KDE with an incorrect entry as to the time[.]"
The right to inspect records, and the corollary right to receive copies, only attaches 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 cannot produce that which it does not have nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that a certain record exists. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005) ("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"); 07-ORD-188; 12-ORD-087; compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence"); 12-ORD-195. Under the circumstances 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, nor is the Attorney General "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; 12-ORD-231. When some of the documents requested have been disclosed, this office has generally declined to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 4; 12-ORD-087.
Within three business days of receiving Mr. Catinna's request for the specified Incident Report, WCPS provided him with a copy of that record in accordance with KRS 61.880(1). Nothing else was required. See 15-ORD-046. On those occasions when a public agency denies that additional responsive documents exist, as in this case, and the record on appeal supports rather than refutes that contention, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"). The record on appeal is devoid of any evidence to conclusively refute the agency's position that no additional Incident Report exists which is responsive to Mr. Catinna's request notwithstanding any discrepancies that Mr. Catinna perceives between the Incident Report and the Annual School Bus Incident Report, Traffic Collision Report, etc . "[O]bjections to alleged inaccuracies and omissions in the records disclosed" cannot be resolved in the context of an Open Records Appeal. 10-ORD-178, p. 2; 12-ORD-162. Nor can this office direct a public agency to create records "or declare is failure to do so a subversion of the intent of the Open Records Act. " 95-ORD-48, p. 2; 15-ORD-164.
Early on, this office clarified that "[t]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. For this reason, the Attorney General has consistently held that requests for information as opposed to requests for public records, "need not be honored." 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080. In addressing this question, the Attorney General has long recognized that "obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying." 04-ORD-080, p. 13 (citation omitted). Public agencies are not required under the Act to gather and supply information independent of that which is set forth in public records. Id. Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id. p. 5, OAG 91-12, p. 5. A review of the statutory language upon which these decisions are premised, including KRS 61.871, KRS 61.872(1), and KRS 61.872(2), validates this position. Accordingly, WCPS went above and beyond its duty under the Open Records Act in answering questions that Mr. Catinna posed upon receipt of the only existing document responsive to his properly framed request for the specified Incident Report. WCPS did not have any obligation to conduct research or compile information to conform to his later "inquiries" and improperly framed requests for information. 14-ORD-073, p. 4, citing OAG 89-45. The agency's disposition of Mr. Catinna's request is affirmed.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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.
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