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 Kentucky Department of Education ("KDE") of his June 24, 2016, request 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 involving a Woodford County School Bus driven by Ruby Hilton. 1 Mr. Catinna observed that Ms. Hilton was "required to file a report on the date of the accident." In a timely response, 2 KDE Assistant General Counsel Amy Peabody advised Mr. Catinna that she was attaching the responsive Incident Report, preemptively explaining that said Report had actually been submitted notwithstanding the "Unsubmitted" notation appearing on the record which resulted from a "computer system error."
By e-mail dated July 3, 2015, Mr. Catinna advised that upon review of the Incident Report provided, he found discrepancies between it and the "Kentucky Uniform Police Traffic Collision Report for that same day." Mr. Catinna further asserted that the Incident Report was "incomplete" and questioned whether Ms. Hilton was "willing to sign a sworn affidavit that the information she provided for this report is truthful, accurate, and complete." 3 KDE responded on July 6, 2015, advising that Ms. Hilton "appears to be an employee of a local school district, not the [KDE]. The KDE cannot compel a school district employee to perform the acts you have described below." Ms. Peabody suggested that Mr. Catinna contact the Woodford County School District with any further inquiries. On July 8, 2015, Mr. Catinna submitted a nearly identical request to Director of Transportation Kay Tegethoff, Woodford County Public Schools, and the KDE Division of Communications, jointly, adding only that the incident "happened at 3:10 p.m. and was reported to the Scott County Sheriff's Office at approximately 3:25 p.m." The District provided him with a copy of the same Incident Report. Ms. Peabody advised Mr. Catinna that KDE does not have any documents responsive to his request beyond the Incident Report provided; he replied that he would appreciate knowing "why a School Bus Incident Report with the information and data I provided, has not been filed." Ms. Peabody advised Mr. Catinna that he would need "to inquire with the local school district. " Mr. Catinna then asked for additional information, specifically the "names, emails, and telephone numbers of local school personnel who can answer my questions." Ms. Peabody provided Mr. Catinna with a link to contact information available on the KDE website.
By e-mail directed to KDE Records Custodian Kevin Brown on August 9, 2015, Mr. Catinna requested "information and data," but also repeated his request for the May 23, 2014, Incident Report previously described. Mr. Catinna reiterated that "some data differences" existed between the Incident Report provided and "what was recorded in a police report by a Deputy Sheriff in Scott County," most notably that the former indicated the incident occurred at 7:10 a.m. rather than 3:24 p.m. 4 Thus, in addition to repeating his original request, Mr. Catinna again requested information, specifically whether "Ms. Ruby Hilton was involved in two" school bus incidents on May 23, 2014. In a timely response, Mr. Brown advised that the Incident Report previously released "is the only one within the possession of the KDE that fails within the scope of your request." Mr. Brown enclosed a "screen shot for all incidents in Woodford County in May 2014" and confirmed that "[t]his is the only data in the KDE system."
Under the Open Records Act, Mr. Brown continued, a public agency such as KDE "is required to produce documents but not required to provide information." Nevertheless, KDE explained that the "application is not designed to track the names of driver trainers nor directors who file incident reports nor the date" on which an Incident Report is filed. KDE quoted 702 KAR 5:030 Section 3, which governs the process, and which does not require inclusion of "the details of who submitted the incident nor at what date and time." Mr. Brown advised that information obtained from the application database showed that a total of four incidents occurred on May 23, 2014, and Ms. Hilton is listed as the driver of the school bus for the incident that occurred at 7:10 a.m. The reports are not always entered on the same day. Many school districts "do it monthly or yearly." With regard to any perceived discrepancies, Mr. Brown further advised that the Incident Report is "most likely only as accurate as what the user enters." KDE "does not verify the information with the police reports. The Incident Report is used for data purposes for Federal reporting." The information contained in the Incident Report is "often entered by a driver trainer or an administrative person." Mr. Brown noted that the Woodford County School District finalized and submitted the Incident Report to KDE.
Ms. Peabody responded to Mr. Catinna's appeal on behalf of KDE. Having accurately summarized the procedural history, Ms. Peabody correctly asserted:
The KDE timely provided all documents requested under the Open Records Act ["Act"] to Mr. Catinna within three (3) days of receipt by the KDE's official custodian of records. The KDE provided prompt clarification to Mr. Catinna to ensure that he was accurately requesting all documents that he appeared to be interested in obtaining. The KDE provided additional documents to Mr. Catinna to demonstrate to him that the KDE possessed no additional documents falling within the scope of his request. Although not required to do so, the KDE also provided Mr. Catinna additional clarifying information regarding the content of the documents provided to aid Mr. Catinna in reviewing and interpreting the documents provided.
The Act only requires production of public records in an agency's possession, custody and control [KRS 61.870(2) 5 ]. The documents provided to Mr. Catinna were the only documents within KDE's possession, custody and control that were responsive to his requests. The Act does not require an agency like KDE to provide additional copies of documents to a requester. 03-ORD-026. KDE's prior provision of the responsive documents to the requester in a previous Open Records response resulted in KDE's successive response that the documents had been previously provided and the lack of a legal requirement for KDE to provide additional copies of these documents. The Act only requires the production of documents, not information. 02-ORD-175. Here, some of Mr. Catinna's e-mails requested information, not documents, and the KDE responded via email that the Act does not require the production of information and that, even if it did, the KDE did not possess the requested information.
As in 16-ORD-090 (In re: Kirk Catinna/Woodford County Public Schools), a recent Open Records Decision resolving Mr. Catinna's related appeal identified as Log No. 201600154, and involving the same Incident Report currently in dispute, the public agency has not committed a violation of the Open Records Act. Rather, the public agency, KDE in this case, has fully discharged its duty under the Act in timely providing Mr. Catinna with a copy of the only existing responsive document notwithstanding any discrepancies that he perceived. As before, this office is unable to resolve "'[o]bjections to alleged inaccuracies and omissions in the records disclosed.'" 16-ORD-090, p. 5 (citations omitted). This office simply cannot "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. 3. Given the series of exchanges which resulted in the instant appeal, it bears confirming that a public agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6; 05-ORD-198; 13-ORD-055. Unless a requester such as Mr. Catinna "can explain the necessity of reproducing the same records which have already been released to him, such as loss or destruction of the records," a public agency is not required to satisfy the same request multiple times. 05-ORD-021, p. 8.
Nor can a public agency such as KDE produce that which it does not have. Having provided the requested Incident Report and subsequently explained the reason that no additional records exist, KDE now finds itself in the untenable position of having to "prove a negative" in order to conclusively refute Mr. Catinna's belief that a second Incident Report was created. Such action is not required under governing legal authority. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), cited in 16-ORD-090. Likewise, a public agency such as KDE is not statutorily obligated to comply with a request for information rather than existing public records or provide answers to questions. See 10-ORD-201. To its credit, upon receipt of e-mails that Mr. Catinna sent following his June 24, 2015, request, KDE opted to answer his improperly framed questions and provide him with additional information and clarifications. With regard to duties of a public agency upon receipt of requests for nonexistent records and improperly framed requests for information, the analysis contained at pp. 5-6 of 16-ORD-090 is equally controlling here; a copy of 16-ORD-090 is enclosed. This office relies upon the reasoning of 16-ORD-090, and the authorities upon which it was premised, as the basis for this decision holding that KDE fully discharged its duty under the Act.
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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