Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Western Kentucky University ("WKU") violated the Open Records Act in the disposition of open records requests submitted by Will Hobson ("Appellant"). For the reasons stated herein, we find that WKU did not violate the Open Records Act when it denied a request for nonexistent records. WKU initially violated the Act by failing to describe the search for responsive records, but corrected the error on appeal. We also find that WKU properly withheld seven groups of email messages pursuant to the exemption for preliminary records, stated in KRS 61.878(1)(i) and (j).
On February 19, 2019, Appellant submitted an open records request seeking "copies of any emails, text messages, and written memos? regarding either Washington Post reporter Will Hobson and/or a story Washington Post reporter Will Hobson is working on about Western Kentucky athletics[.]" Appellant was seeking messages sent by a list of nine WKU employees from November 15, 2018 through February 19, 2019. 1
On February 22, 2019, WKU denied the request for text messages and written memorandums stating that no responsive records existed. However, WKU did not describe the search for responsive records or identify the locations searched. Regarding responsive email messages, WKU stated that it, "declines to produce electronic messages between WKU employees...as these communications were internal communications containing recommendations in which opinions are expressed and are thus exempt under KRS 61.878(1)(j)." However, the record shows that WKU provided Appellant copies of email messages that the nine employees directed to him.
On March 29, 2019, Appellant appealed the disposition of his request to our office. Appellant argued that WKU had used an overly broad application of the KRS 61.878(1)(i) and (j) exclusions, and the university should have attempted to redact the emails and disclose the nonexempt portions. On April 11, 2019, WKU General Counsel Deborah T. Wilkins responded to the appeal stating WKU withheld seven responsive email messages. WKU attached copies of the responsive emails for purpose of in camera review, pursuant to KRS 61.880(2)(c) and 40 KAR 1:030. WKU described the emails as, "internal communications between subordinate and supervisory employees...as part of and in order to formulate and coordinate the University response to a request for issuance of press credentials sent to multiple University officials." WKU stated that it provided Appellant a copy of the appeal response, but did not provide him copies of the withheld emails.
On April 5, 2019, our office asked that WKU supplement the appeal record with information regarding the search for responsive records. Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office asked that WKU describe the search for responsive records and identify the locations searched, in order to facilitate a correct resolution of the matter. See 10-ORD-076; 14-ORD-017.
On April 15, 2019, Ms. Wilkins supplemented the record on behalf of the University. Ms. Wilkins provided a description of the search for responsive records and verified that the nine employees identified by Appellant participated in the search under the direction of herself and the WKU President. Ms. Wilkins stated that the WKU President verified that the employees possessed no responsive text messages and written memoranda and, "conveyed this information to me." Ms. Wilkins also described the search of WKU email system for responsive emails. She stated that WKU searched using, "an archiver program housed centrally in and under the control of the University's Division of Information Technology." Ms. Wilkins described the keyword searches used to locate responsive emails. She stated that she personally verified that WKU disclosed all responsive emails to our office for in camera review.
WKU Cannot Provide Access to Nonexistent Records . With regard to Appellant's request for text messages and written memorandums, we find the record supports WKU's denial of the request due to the nonexistence of responsive records. WKU initially violated KRS 61.880(1) by failing to explain the nonexistence of the responsive records in the written response denying Appellant's open records request. However, WKU corrected the error on appeal and met its burden of proof under the Act.
The Attorney General has consistently recognized that a public agency cannot provide a requester with access to a nonexistent record or that which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that a certain record exists in the possession of the agency. See
Bowling v. Lexington-Fayette Urban Cty. Gov't, 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"); 11-ORD-091. Although the intent of the Open Records Act has been statutorily linked at KRS 61.8715 to the intent of KRS Chapter 171 pertaining to management of public records, 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).
However, in order to satisfy the burden of proof imposed on a public agency per KRS 61.880(2)(c), a public agency must offer a written explanation for the nonexistence of the record if appropriate. See
Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011); 04-ORD-075; 12-ORD-195. A public agency violates KRS 61.880(1) when it fails to advise the requesting party whether the record in dispute exists in the possession of the agency, but discharges its duty under the Open Records Act in affirmatively indicating that a certain record does not exist, following a reasonable search, and explaining why, if appropriate. This office has expressly so held on many occasions. 04-ORD-205, p. 4; 12-ORD-056; 18-ORD-088. The record was initially unclear as to what search methods WKU had employed to identify and locate all existing responsive documents. Therefore, we asked that WKU fully describe its search for records responsive to Appellant's request. 2
WKU ultimately provided this office and Appellant the required written explanation for the nonexistence of responsive text messages and memorandums. During the appeal, WKU provided evidence that it made a good faith effort to locate records responsive to Appellant's request. See 95-ORD-96. The record on appeal evidences that the nine employees identified by Appellant participated in the search for responsive records, but no responsive records were located. Appellant has produced no affirmative evidence that WKU possesses responsive records. Neither is there any evidence of existing legal authority requiring WKU or the nine employees to create text messages or memorandums responsive to Appellant's request. See 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring [the agency] to create or maintain" the records being sought from which their existence could be presumed). Accordingly, we find that WKU met its burden of proof under KRS 61.880(2)(c) and justified the denial of responsive text messages and written memorandums based on their nonexistence.
WKU Properly Withheld Responsive Email Messages Pursuant to KRS 61.878(1)(i) and (j) . WKU properly seven groups of email messages as preliminary, pursuant to KRS 61.878(1)(i) and (j). 3 WKU stated that it withheld seven email messages. This Office is precluded from disclosing the contents of records confidentially provided for our in camera review. However, WKU accurately described the emails as "internal communications between subordinate and supervisory employees[.]" WKY also accurately described the emails as communications relating to the "issuance of press credentials, " wherein WKU supervisors requested advice and subordinate employees responded with frank opinions and recommendations. WKU described the withheld records as "seven email messages, " but our review shows that the responsive records consist of seven groups of very brief email exchanges. The emails also contain draft correspondences to Appellant circulated among WKU staff for review and comment. Nevertheless, based on our in camera review of the records disclosed, we find that WKU properly withheld the emails.
KRS 61.878(1)[(i) and (j) are intended to permit public agency's to withhold the kind of communications at issue in this appeal. Regarding the underlying rationale of these statutory exceptions, the Attorney General has recognized that "KRS 61.878(1)[(i) and (j)] have been interpreted to authorize the nondisclosure of both interagency and intra-agency drafts and memoranda, and are designed to encourage frank discussion of matters of concern to the public agency or agencies." 93-ORD-125, p. 4. This office has found that withholding such exchanges produces "an atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision." See OAG 88-85, p. 4; 15-ORD-202; 18-ORD-216. Therefore, WKU properly characterized the emails at issue in this appeal as preliminary.
However, "once such notes or recommendations are adopted . . . as part of its action, the preliminary characterization is lost, as is the exempt status."
Ky. State Bd. of Med. Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953, 956 (Ky. App. 1983). As such, "our analysis does not end with a determination that documents are preliminary in character, but instead also requires a determination of whether such documents, or portions thereof, were ultimately adopted as the basis or a part of the agency's final action. " 14-ORD-181; 16-ORD-039, p. 7.
In this case, there is no evidence that WKU adopted or incorporated the employee emails into a final action. The record shows that WKU followed the advice of employees regarding the drafts of the correspondences to Appellant, but did so without adopting the emails. The record also shows that WKU sent the drafts to Appellant without change. As such, the employee emails retained their preliminary character and WKU properly withheld them from inspection. Appellant argues that WKU should have redacted the email messages and released the nonexempt portions. Our review show that WKU disclosed all of the drafts in its initial response, but without providing the underlying employee comments. Under these facts, WKU was not required to redact the emails and disclose duplicate copies of the draft correspondences. 4
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 The original open records request contained a typographical error in the timeframe "November 15, 2019." Appellant corrected the error in a subsequent email message, and the record establishes that WKU understood the correct starting date as "November 15, 2018."
2 A public agency responding to an open records request must "expend reasonable efforts to identify and locate the requested records." 95-ORD-96. A public agency is also required to "make a good faith effort to conduct a search using methods which can reasonably be expected to produce records requested[.]" Id. (quoting Cervey v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D.Colo. 1978)). As such, a public agency is required to direct a search "not only to the first and most obvious places where responsive records could be located but to all places that might yield responsive records." 12-ORD-153.
3 KRS 61.878(1)(i) and (j) create exceptions to the Open Records Act in cases of, respectively: "(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;" [and] "(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]"
4 With respect to duplicative requests for documents, this office has consistently held that that an 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. Further, a public agency is not required to honor a duplicative request absent an explanation of the necessity of receiving duplicate copies. 09-ORD-189, p. 3.