TO BE PUBLISHED 

94-ORD-121

October 25, 1994

IN RE: Robert H. Flashman/University of Kentucky

OPEN RECORDS DECISION

This appeal originated in a series of requests for public records submitted by Mr. Robert H. Flashman, a faculty member at the University of Kentucky, to the University in October, 1993, and July, 1994. Those records are identified as:

are not reports or minutes of Senate committees;

The record of the University policy on the proper maintenance location of University records that shows . . . what records [faculty members must maintain, either temporarily or permanently, in their offices].

The University's Official Records Custodian, Mr. George DeBin,

denied Mr. Flashman's requests on July 22, 1994. In response to his request for archives and records statutes and regulations, and rules promulgated by the Department for Library and Archives relating to University records management, Mr. DeBin advised Mr. Flashman that "the Attorney General has opined that the open records provisions do not require public agencies to conduct legal research (OAG 89-45)." Mr. DeBin suggested that Mr. Flashman review the Kentucky Revised Statutes and the Kentucky Administrative Regulations located in the University of Kentucky Law Library.

In response to Mr. Flashman's request for the record which documents the University's policy on the proper location of Senate Committee records, Mr. DeBin stated that "[t]here exists per se no [such] record . . . ," and noted that the Senate Council Office, where the records are maintained, "is the only physical office of the Senate." He also denied the existence of records documenting the University's policy on faculty records maintenance obligations. Mr. DeBin advised Mr. Flashman to review those portions of the Records Retention and Disposal Schedule which are applicable to the faculty units with which he is associated, and applicable Senate rules.

Out of this relatively simple exchange, Mr. Flashman fashions an elaborate argument premised on the University's failure to discharge its statutorily mandated records management duties and responsibilities. His point of departure is the University's denial of his request for public records. His objective is a legally binding Attorney General's decision declaring that the University has subverted the intent of both the Open Records Act, KRS 61.870 et seq., and the State

Archives and Records Act, KRS 171.410 et seq., by failing to establish a comprehensive records management system aimed at facilitating ready access to public records. He travels a circuitous route in pursuit of his ultimate goal: agency accountability.

Mr. Flashman prefaces his argument with citation to a recent decision of the United States Court of Appeals for the District of Columbia Circuit. In Armstrong v. Executive Office of the President, 1 F.3d 1274 (D.C. Cir. 1993), the Court confronted the thorny issue of implementing an efficient records management system in an era of rapidly evolving technologies. Mr. Flashman analogizes the failure of various federal agencies attached to the Executive Office of the President to discharge their obligations under the Federal Records Act, 44 U.S.C.  2101 et seq., 2901 et seq., 3101 et seq., 3301 et seq., to the failure of the University of Kentucky to discharge its obligations under the State Archives and Records Act, KRS 171.410 et seq. It is Mr. Flashman's position that "the Office of the President of the University has done little to comply with his enforcement duties arising under KRS 171.410 - 740 and the rules and regulations of the Department for Libraries and Archives."

In support of his position, Mr. Flashman notes that on each occasion that he requested access to documents relating to records management, such as the governing statutes, regulations, and rules and the University's own internal organizational policies, he was rebuffed on the pretext that the University is not required to conduct research or produce a document which does not exist. He challenges the University's reliance on OAG 89-45, arguing that the custodian improperly equates an "obligatory search" with "nonobligatory research." Since the University's own Records Retention and Disposal Schedule requires that the University indefinitely maintain copies of the archives and records statutes and regulations in the office of the Records Officer located in the Vice-Presidential area, Mr. Flashman maintains that the University cannot persuasively argue that any additional research is necessary to locate and retrieve these records. Mr. Flashman advances the same argument with respect to the rules issued by the Department for Library and Archives which are referenced in KRS 171.680(2)(d) and maintained, pursuant to the University Records Retention and Disposal schedule, in the office of the Records Officer.

More importantly, Mr. Flashman asserts, "these responses constitute actionable violations of [the] 'essentially related' intents of both the Open Records and the Archives and Records laws." He reasons:

[I]t is . . . a requirement of the Kentucky Archives and Records law for the President to take active measures to get to the agency employees copies of the laws, regulations and rules with which the agency expects them to comply . . . .

The failure, indeed, the refusal of the Official Custodian and UK President to ensure that I receive a copy of minimally the Archives and Records statutes, regulations and rules with which I am expected to comply in my records-handling practices has direct implications for the in-

tent of the Open Records law as well. . . .

Analogizing the University's failure to disseminate information pertaining to records management to faculty and staff to the failure of federal agencies attached to the Office of the President to implement an adequate program for ensuring records preservation, Mr. Flashman urges this office to "us[e] the Open Records Act to enforce 'essentially related' intents in the Archives and Records law . . . [to establish] a national precedent to which other states and federal jurisdictions will look with great interest."

Mr. Flashman also objects to the University's denial of his request for "records showing the organizational scheme for location [and] maintenance of certain records not shown on the Records Retention and Disposal Schedule" on the grounds that no such record exists. In his view, this response con- stitutes a violation of the Open Records Law resulting from the failure of the official custodian to ensure the maintenance, care, and keeping of agency records. He argues that "[t]he failure of the President, and his delegate the Official Custodian, to ensure that the maintenance location and retention period of certain records was included in the Records Retention and Disposal Schedule signed in the late 1970s does not release either of them from their responsibility to establish and actively enforce a coherent scheme for the organized maintenance, at identified accessible locations, of every type of agency record." (Emphasis in original.) How, Mr. Flashman asks, can an agency ensure that its employees

properly maintain records if the agency fails to establish "a coherent organizational scheme for records maintenance that accounts for all agency records."

In Mr. Flashman's view, this confluence of events, i.e., an appeal of the University's denial of a request for documents showing the organizational scheme for unscheduled University records, coupled with a demonstration that the failure of the University to establish such a scheme subverts the "essential relationship" between the Open Records and Archives and Records laws, authorizes the Attorney General "to render a binding Open Records decision to compel the University of Kentucky President to fully establish a coherent scheme for the organizational maintenance intended by KRS 171.680 for all agency records." Moreover, it authorizes the Attorney General "to compel the University of Kentucky President to cause to be made and preserved records that constitute or show the organizational scheme for maintenance locations of agency records, once such a scheme has been established." In sum, Mr. Flashman argues:

[T]o the extent that the University's organizational scheme for the maintenance locations of all agency records is unwritten and undocumented, thus subverting the intent of public access to such policies, . . . the intent of timely response by the agency to requests for records, and thus . . . the intent of agency employees' access to the records maintenance scheme that they are supposed to follow in their records handling, the Attorney General is empowered by KRS 61.880(4) and the new preamble section for KRS 61.870-884 to reach to KRS 171.640 and compel the University to create the missing documentation records on its organizational scheme for the maintenance locations of all types of agency records.

(Emphasis in original.)

The questions presented in this open records appeal are:

1. Whether the University of Kentucky properly denied Mr. Flashman's request for Archives and Records statutes, rules and regulations.

2. Whether the University of Kentucky subverted the intent of the Open Records Act, which is essentially related to the intent of the State Archives and Records Act, by failing to develop an adequate program for ensuring records management through agency oversight of employee records handling practices.

3. Whether the University of Kentucky subverted the intent of the Open Records Act, which is essentially related to the intent of the State Archives and Records Act, by failing to develop a coherent scheme for the organized maintenance of records at identified maintenance locations.

It is the opinion of this Office that each of these questions must be answered in the affirmative. However, we are not empowered, and therefore decline, to direct the establishment of an organizational scheme and the creation of a record documenting same.

I. UNIVERSITY'S DENIAL OF MR. FLASHMAN'S REQUEST FOR STATUTES, RULES, AND REGULATIONS

The first of these questions is easily resolved. Mr. Flashman requested copies of the "Kentucky Archives and Records statutes and regulations." He subsequently submitted a request for "'rules' promulgated by the Department for Library and Archives concerning the parameters within which the UK Records Management Program must operate in its creation, maintenance, storage and servicing of records . . . ." The University denied these requests, advising Mr. Flashman "that the open records provisions do not require public agencies to conduct legal research." In support of this position, Mr. DeBin cited OAG 89-45. The University did not object to Mr. Flashman's request on the grounds that it is not obligated to reproduce the text of a published work, or any portion thereof, in response to an open records request. We therefore do not address this issue.

In OAG 89-45, this Office recognized that the Open Records Act "[does] not require public agencies to carry out research or compile information to conform to a given request." OAG 89-45, p. 3, citing OAG 79-547 and OAG 81-333. There the requester sought access to the addresses of individuals whose names and addresses he had previously secured. We characterized this request as "a request for research to be performed, rather than for inspection of reasonably identified public records," noting that the public agency from which the records were sought "had no compiled record corresponding to the request." We believe that this opinion is factually distinguishable.

Mr. Flashman requested copies of records which, according to the University's own Records Retention and Disposal Schedule, must be maintained in the "Vice-Presidential area." The records have thus, presumably, been compiled for purposes of satisfying the University's records retention obligations. In addition, as evidenced in President Wethington's February, 1992, memorandum to University chancellors and vice-presidents, and a March 18, 1993, memorandum from the President's Special Assistant for Academic Affairs, Ms. Juanita W. Fleming, to Professor Davy Jones, these records were also compiled for distribution to the chancellors and vice-presidents in the period between February, 1992, and March, 1993. No additional research need be performed. The records must simply be retrieved.

We concur with Mr. Flashman in his view that the University has improperly equated an obligatory search with nonobligatory research. As this Office noted in an early opinion, "Every request to inspect a public record causes some inconvenience to the staff of a public agency . . . . We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection." OAG 77-151, p. 3. We fail to see how the University will be inconvenienced by Mr. Flashman's request, and find that it is obligated to conduct whatever minimal search is needed to locate the record. The fact that the same records may be obtained from another source, here the University's Law Library, does not relieve the University's custodian of his duty to release nonexempt public records. See, e.g., OAG 90-71. The University is directed to provide Mr. Flashman with copies of these records.

II. UNIVERSITY'S FAILURE TO DEVELOP AN ADEQUATE RECORDS MANAGEMENT PROGRAM

Having established that the University violated the Open Records Act by denying Mr. Flashman's request for records, we turn to the more difficult question of whether the University subverted the intent of the Act, which is essentially related to the intent of the State Archives and Records Act, by failing to develop an adequate program for ensuring records management through agency oversight of employee records handling practices. We begin by noting that the Open Records Act was substantially amended in 1994. Fundamental to these amendments is the recognition that an "essential relationship" exists between the intent of KRS 61.870 to 61.884, dealing with open records of public agencies, KRS 171.410 to 171.740, dealing with the management of public records, and KRS 61.940 to 61.957, dealing with coordination of strategic planning for computerized information systems in state government. KRS 61.871. The introduction of this language marks a watershed in the evolution of the Open Records Law.

The "basic policy" of the Open Records Act, recognized by Kentucky's courts, and until recently codified at KRS 61.871, "is to afford free and open examination of public records . . . ." Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324 (1992); Frankfort Publishing Co., Inc. v. Kentucky State University, Ky., 834 S.W.2d 688 (1992). To this end,

an agency must adopt rules and regulations which conform to the provisions of KRS 61.870 to 61.884:

[T]o provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to ensure efficient and timely action in response to application for inspection . . . .

KRS 61.876(1) (emphasis added). The responsibility for the "maintenance, care and keeping" of the agency's public records is assigned to the official custodian of records. KRS 61.870(5). This position may be occupied by the chief administrative officer or any other officer or employee of a public agency vested with these duties.

Until July 15, the State Archives and Records Act, codified at KRS 171.410 to 171.740, tracked a parallel path to that of the Open Records Act. Those paths now converge. 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:

(a) Effective controls over the creation, maintenance, and use of records in the conduct of current business;

(b) Cooperation with the department in applying standards, procedures, and techniques designed to improve the management of records;

(c) Promotion of the maintenance and security of records deemed appropriate for preservation, and facilitation of the segregation and disposal of records of temporary value;

(d) Compliance with the provisions of KRS 171.410 to 171.740 and the rules and regulations of the department [for Library and Archives].

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 employes 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.

In enacting KRS 61.871 the General Assembly recognized that the intent of the Open Records Act, to provide full access to public records, was essentially related to, and would be promoted by, efficient records management. This, of course, is the intent and purpose of the State Archives and Records Act. Subversion of the intent of the Archives and Records Act thus constitutes subversion of the intent of the Open Records Act. If a public agency fails to discharge its statutorily mandated duty to establish effective controls over the creation, maintenance, and use of records, and to make known to all of its officials and employees that no records are to be destroyed except in accordance with the law, the agency subverts the intent of the Open Records Act by frustrating full access to public records.

Mr. Flashman's inability to obtain copies of the applicable archives and records statutes, regulations, and rules, University policies on unscheduled records, and University policies on employee records handling practices suggests that the University has not only failed to effectively control the creation, maintenance, and use of records and promote the maintenance and security of records by making it known to officials and employees that records must not be destroyed except in accordance with the law, it has actively thwarted an employee's efforts to educate himself. The University's failure to conduct an obligatory search for

nonexempt public records constitutes a violation of the mandatory disclosure provisions of the Open Records Act. Its failure to implement an adequate program for insuring records preservation constitutes a subversion of the intent of the Open Records Act and the State Records and Archives Act.

We are not unmindful that the University of Kentucky faces a particularly daunting task in discharging its duties under the Open Records Act and the Library and Archives Act. Nevertheless, we believe that in light of the amendment to KRS 61.871, the University is obligated to review its existing policies relative to oversight of employee recordkeeping practices to avoid future violations of the Open Records Act, and, just as importantly, to avoid future violations of the State Records and Archives Act, and the severe penalties attached thereto.

III. UNIVERSITY'S FAILURE TO DEVELOP A COHERENT ORGANIZATIONAL SCHEME FOR UNSCHEDULED RECORDS

Turning to the final question in this appeal, we find that the reasoning articulated above may be extended to the University's records management policies relative to unscheduled records, and that the University subverted the intent of the Open Records Act by failing to establish a coherent organizational scheme for these records. As noted, the purpose and intent of the Open Records Act is to provide full access to public records. The intent of the Archives and Records Act, which has been deemed essentially related to the intent of the Open Records Act, is to insure efficient records management. We believe that it is impossible, as a practical matter, to facilitate access to University records if the University has not established a records management program for

unscheduled records. The failure of the University to implement such a program increases the likelihood that records access will be frustrated. Simply stated, the ability to retrieve a public record and make it available for inspection is directly related to the University's ability to locate that record within the labyrinthine University structure.

Although we are firmly convinced that the University of Kentucky is obligated to reevaluate its records management program for unscheduled records by virtue of the recent amendments, we are not empowered, and therefore decline, to order the University to do so, or to create a record documenting the program. KRS 61.880(2)(a) expressly provides an administrative remedy for violation of the Open Records Act by and through the Attorney General. That remedy lies in the

submission of a written appeal and the issuance of a written decision stating whether the agency violated, or otherwise subverted the intent of, provisions of KRS 61.870 to 61.884. It is an "elementary canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court [and, of course, this Office] must be chary of reading others into it." Transamerica Mortgage Advisors, Inc. v. Lewis, 441 U.S. 11, 19, 62 L.Ed.2d 146, 100 S.Ct. 242 (1979), quoted in Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 149, 63 L.Ed.2d 267, 280, 100 S.Ct. 960 (1980).

Clearly, the Open Records Act does not require a public agency to create records; it only obligates the agency to provide access to those which it in fact has created. OAG 78-321; OAG 90-100; OAG 91-12; OAG 91-20; OAG 91-138; OAG 91-203; accord, Kissinger v. Reporters Committee, supra at 63 L.Ed.2d 282; Armstrong v. Executive Office of President, supra at 1287. It is, rather, in the State Archives and Records Act that Mr. Flashman's remedies lie. That Act carries with it a number of severe penalties for violation of the provisions relating to the creation of agency safeguards against removal

or loss of records, notification to the Department of Library and Archives of actual, impending or threatened destruction of records, and the records destruction generally. KRS 171.990(3) provides:

Any person knowingly violating the rules and regulations of the department pursuant to the provisions of KRS 171.450, 171.560, 171.670, 171.710, or 171.720 is guilty of a Class A misdemeanor and is also liable for damages or losses incurred by the commonwealth. Any state employe who knowingly violates these provisions shall also be subject to dismissal from state employment upon a determination of fact, at a hearing, that a serious violation did occur. The employe's right to appeal to the state personnel board is not abridged or denied. In the event of an appeal, the decision of the state personnel board is final.

In our view, these are powerful weapons in the war on agency records mismanagement.

We acknowledge that this decision represents a radical departure from earlier holdings of this Office. This departure is prompted in part by the significant changes wrought by the 1994 General Assembly, and in part by a growing recognition of the records access problems which result from records mismanagement. By declaring that there is an essential relationship between the intent of the Open Records Act and the intent of the State Archives and Records Act, the General Assembly has demonstrated its intent to eliminate these problems. It is the Attorney General's duty to construe the law in a manner which is consistent with this intent.

Mr. Flashman and the University of Kentucky may challenge this decision by initiating action in the appropriate circuit court. 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 proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

res/959

Distributed to:

Mr. George DeBin

Official Records Custodian

Office of the President

104 Administration Building

University of Kentucky

Lexington, KY 40506-0032

Professor Robert H. Flashman

3220 Blenheim Way

Lexington, KY 40503