Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: ALBERT B. CHANDLER III, ATTORNEY GENERAL; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This is an appeal from Kentucky State University's response to Johnnie dee Swain Jr.'s May 5, 1997, ten part request for records and information relating to personnel matters at the University. On September 17, 1997, Mr. Swain initiated this open records appeal, stating that he had "not received the requested information - etc." On September 22, 1997, this office sent a notification of Mr. Swain's open records appeal to the University. Shortly thereafter, we received the University's response, and a copy of a May 23, 1997, letter to Mr. Swain from Harold J. Greene, Jr., General Counsel at KSU.
In his May 23 response to Mr. Swain's original request, Mr. Greene advised that requests 1, 2, 5, and 6 "will be researched and will be provided if there is no undue hardship to the University." Mr. Greene denied requests 3, 4, 7, 8, 9, and 10 "under the Exemptions for Open Records Act ," indicating that the University would "be happy to supply [Mr. Swain] with the citing of the exemption at [his] request." (Emphasis in original.) In a follow-up letter to this office, dated September 25 but received on September 29, Mr. Greene stated that "to [his] knowledge the records to which the University had no objection were provided," but noted that he would "check to verify whether they were forwarded." Mr. Greene reaffirmed the University's denial of requests 3, 4, 7, 8, 9, and 10, this time providing specific authority for the decision to deny access.
The University denied Mr. Swain's request for faculty grievances and the minutes of University appeals committee hearings on these grievances from 1985 to 1997 on the basis of KRS 61.878(1)(i), KRS 61.878(3), and KRS 61.872(6), commenting:
Copies of faculty grievances and minutes of the University Appeals involve issues of tenure which may have not resulted in the grant of tenure or any final personnel action. Dr. Swain did not request any records of a faculty grievance which related to him. The request is so broad it places an unreasonable burden on the University because it covers a period of 12 years. The process of determining the [sic] which records were exempt or not would require considerable time of staff and the General Counsel. A more specific request would provide the university the opportunity to determine whether it could comply.
The University denied Mr. Swain's request for copies of faculty and staff non-reappointment appeals and minutes of University appeals committee hearings from 1988 to 1997 pursuant to KRS 61.878(1)(a) and KRS 61.872(6). Mr. Green explained:
Copies of faculty, staff, non-appointment appeals and minutes of the University Appeals Committee places [sic] an unreasonable burden on the University and in some instances involve information of a very personal nature. Often faculty and staff are not reappointed because they have resigned for personal reasons including, [sic] illness, emotional states and other such matters.
The University denied requests 7, 8, 9, and 10, relating to faculty grievances and faculty and staff non-reappointment appeals presented to the dean, vice-president, president, or board of regents from 1985 to 1997, and the final dispositions of these grievances and appeals, on the basis of KRS 61.878(1)(a), noting:
# 7, # 8, # 9, # 10 places an unreasonable burden on the University because it covers a period of 12 years. If Dr. Swain would specify his request or if he sought those documents and records related to him the University could determine if it could comply. In many instances the settlement agreements are not disclosed by agreement of the parties. However, if Dr. Swain would specify which settlement agreements he seeks the University could determine if it could comply.
The University apparently honored requests 1, 2, 5, and 6 in which Mr. Swain asked that KSU calculate the number of appeals committees appointed to hear faculty grievances and faculty and staff non-reappointment appeals, the number of grievances filed and the number of non-reappointment appeals filed. 1
The question presented in this appeal is whether Kentucky State University violated the Open Records Act in responding to Mr. Swain's requests. For the reasons which follow, we find that the University's response was both procedurally and substantively violative of the Act.
We begin by noting that KSU's response to Mr. Swain's request was procedurally deficient. A public agency to which an open records request is made must comply with KRS 61.880(1) in responding to that request. That statute provides that the public agency must respond in writing and within three business days to the request. If the agency denies all or any portion of the request, it must cite the specific exception authorizing nondisclosure of the requested records, and briefly explain how the exception applies to the record withheld. In Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996), the Kentucky Court of Appeals construed KRS 61.880(1), observing:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response . . . [does not] even remotely comply with the requirements of the Act--much less . . . amount[] to substantial compliance.
KSU's initial response to Mr. Swain's request was plainly deficient. Not only did the University fail to respond within three business days (in fact fourteen business days elapsed before the University responded), but it omitted any reference to the specific exceptions authorizing nondisclosure and any explanation of how the exceptions applied to the records withheld. The requirements of KRS 61.880(1) are not satisfied by the statement that the agency will happily supply the relevant statutory exemption upon request. KSU's May 23 response to Mr. Swain's May 5 request therefore violated the Open Records Act.
Moreover, KSU improperly attempted to postpone its decision relative to four of the ten requests by advising Mr. Swain that it would "research" these requests and honor them "if there is not undue hardship on the University." The Open Records Act does not recognize "undue hardship" as a basis for denying access to public records. As the Attorney General has so often observed:
Nothing in the statute permits an agency to postpone or delay this statutory deadline while the agency "[begins] the process of identifying and compiling the [requested] records [or in this case "research" the request]. The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to provide the requester with timely access to the requested records.
93-ORD-134, p. 10.
Finally, we note that the University has apparently failed to establish a clear policy for releasing documents under the Open Records Act. Mr. Greene states that he believes Mr. Swain was provided with copies of some records but indicates that he must "check to verify whether they were forwarded." In his appeal, Mr. Swain maintains that he has not received the records. KRS 61.880(1) states that the public agency's response to an open records request "shall be issued by the official custodian or under his authority, and . . . shall constitute final agency action." The term "official custodian" is defined at KRS 61.870(5) as "the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control[.]" it is unclear whether Mr. Greene serves as KSU's official custodian of records, for purposes of the Open Records Act, or merely acts under the official custodian's authority. Whatever the case, we strongly urge KSU to adopt and implement policies which insure compliance with KRS 61.880(1) and adequate oversight of its duties relative to records access, including the designation of an official custodian to process records requests and insure release of records in a legally correct and timely fashion.
Turning to the substantive issues in this appeal, we find that the University failed to meet its burden of proof relative to invocation of KRS 61.878(1)(a), KRS 61.878(1)(i), KRS 61.878(3), and KRS 61.872(6). The General Assembly has declared that "free and open examination of public records is in the public interest and the exceptions provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others." KRS 61.871. In construing this language, the Kentucky Supreme Court has determined that "the statute exhibits a general bias favoring disclosure. " Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324, 327 (1992). For this reason, "an agency resisting disclosure has the burden of proof to sustain its action." Id. at 326 citing KRS 61.882(3); see also, KRS 61.880(2)(c) (stating that "the burden of proof in sustaining the action shall rest with the agency"). We examine each of the exceptions cited by the University, and consider their application to the documents withheld.
KRS 61.878(1)(a)
KRS 61.878(1)(a) excludes from public inspection:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
The courts have developed a two part analysis for determining the propriety of an agency's invocation of this exception. In Zink v. Commonwealth of Kentucky, Ky.App., 902 S.W.2d 825, 828 (1995), the Court of Appeals adopted the test first set forth by the Supreme Court in Board of Examiners , above:
Our analysis begins with a determination of whether the subject information is of a "personal nature." If we find that it is, we must then determine whether public disclosure "would constitute a clearly unwarranted invasion of personal privacy. " This latter determination entails a "comparative weighing of antagonistic interests" in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. Id. at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
The Zink court noted that in weighing the public interest in disclosure against the privacy interests involved, "the only relevant public interest to be considered is the extent to which disclosure would serve the principle purpose of the Open Records Act. " Zink at 828. "The purpose of disclosure, " the court continued, "focuses on the citizens' right to be informed as to what their government is doing." Id. Disclosure of records which do not subject agency action to public scrutiny may not be required where there is a competing privacy interest.
Mr. Swain requested copies of faculty and staff grievances and non-reappointment appeals, the minutes of hearings arising from those appeals, and the final dispositions of those grievances and appeals. Mr. Green indicates that in some instances these records contain information of a personal nature. He notes that "often faculty and staff are not reappointed because they have resigned for personal reasons including illness, emotional states and other such matters." For this reason, he maintains that all such records are excluded from public inspection. We do not agree.
Under the Board of Examiners - Zink analysis, we begin with the question: Do these records contain information of a personal nature? No doubt, on some occasions they do. An employee may, for example, refer to emotional or physical problems resulting from stress or harassment in the work place. Such information is "generally accepted by society as details in which an individual has at least some expectation of privacy." Zink at 828. Conversely, many employees may hope that their grievances and appeals will become public so as to expose defects or deficiencies in the manner in which the agency executes its functions. KSU does little to substantiate the existence of a legitimate privacy interest, commenting only on employees who resign for personal reasons. Presumably, these individuals would have no reason to file a grievance or appeal.
We next proceed to a determination whether disclosure of these records constitutes a clearly unwarranted invasion of personal privacy by weighing the public interest in disclosure against the privacy interests involved. Mindful that the only relevant public interest to be considered is the extent to which disclosure would further the citizens' right to be informed as to what their government is doing, we find that there is a significant public interest in monitoring the agency's response to and handling of employee grievances and appeals. As the Supreme Court observed at page 328 of Board of Examiners :
The public's "right to know" under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.
"The public upon request has a right to know what complaints have been made and the final action taken. . . ." City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658, 660 (1982).
Because KSU fails to adequately substantiate the privacy interest of employees filing grievances and appeals, and we cannot postulate such an interest in all cases, we find that the significant Open Records Act related public interest in disclosure outweighs the privacy interest. Accordingly, we conclude that disclosure of grievances and appeals would not constitute a clearly unwarranted invasion of personal privacy. Unless KSU can articulate a basis for denying access to particular grievances and appeals in terms of the requirements of KRS 61.878(1)(a), it must disclose these records to Mr. Swain.
We believe that the same reasoning can be extended to the minutes of hearings at which appeals are considered, and the final disposition of the appeals and grievances. The Open Meetings Act permits closed session discussions or hearings which might lead to the appointment, discipline, or dismissal of an employee. KRS 61.810(1)(f). Minutes of such sessions, if made, are not subject to mandatory disclosure. (See, for example, OAG 87-16, holding that minutes of a properly conducted closed session need not be made available for public inspection or even recorded since to do so would defeat the purpose of conducting the closed session.) The public's interest in disclosure of minutes of all public hearings at which appeals are considered, and the final dispositions of these appeals, is at least as great as its interest in the grievances and appeals which spawn them. Because KSU did not justify the refusal of inspection of particular minutes or final dispositions with specificity, and in terms of the requirements of KRS 61.878(1)(a), these records must be disclosed. 2
KRS 61.878(1)(i)
KSU next argues that because "faculty grievances and minutes of the University Appeals involve issues of tenure which may have not resulted in the grant of tenure or any final personnel action" they are excluded from public inspection by KRS 61.878(1)(i). 3 Again, we do not agree.
KRS 61.878(1)(i) authorizes the nondisclosure of "preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final agency action." The courts and this office have long recognized that complaints against public agencies, public officers, and public employees are not exempt from inspection after final action is taken, or the decision is made to take no action, under either KRS 61.878(1)(i) or (j). City of Louisville , above; Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, Ky.App., 830 S.W.2d 373 (1992); 94-ORD-27 (and OAGs cited therein). Thus, at page 660 of City of Louisville the Court of Appeals observed, "Inasmuch as whatever final actions are taken necessarily stem from [the complaints], they must be deemed incorporated as part of those final determinations." Elaborating on this rule of law, in 94-ORD-27 the Attorney General commented:
The fact that [the agency] concluded that there was no basis for action . . . has no bearing on whether the complaint must be released.
94-ORD-27, p. 5. The decision to take no action is functionally equivalent to final action.
Although we can locate no opinions in which this rule of law has been applied to employee grievances, we believe that grievances are synonymous with complaints and subject to disclosure under the same logic. The term "grievance" is defined as "a complaint based . . . on a circumstance regarded as just cause for protest," Webster's II New Riverside University Dictionary , p. 548; "a complaint filed by an employee regarding conditions and for resolution of which there is procedural machinery provided," Black's Law Dictionary 632 (West, 5th ed 1979); "an injury, injustice or wrong which gives ground for complaint because it is unjust, discriminatory, and oppressive." Id. Thus it can be said that whatever final actions are taken on the grievances, including the decision to take no action, those grievances must be deemed incorporated into final action and made available for public inspection along with the notification of final action (or of the decision to take no action). Obviously, the minutes of a public meeting, in this case a hearing on a grievance or appeal, cannot be treated as a preliminary document once the minutes are approved by the public agency. KRS 61.835.
We therefore reject KSU's contention that because tenure was not granted, or final action taken, in some of the appeals, records relating to them are exempt pursuant to KRS 61.878(1)(i). KSU does not allege that any appeals are still pending. Accordingly, the records which Mr. Swain requested must be disclosed.
KRS 61.878(3)
KSU's third argument is based on KRS 61.878(3). That statute provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
In his response to Mr. Swain's appeal, Mr. Greene notes that Mr. Swain "did not request any records of a faculty grievance which related to him." Apparently, it is KSU's position that pursuant to KRS 61.878(3) an employee is only entitled to see records which relate to him or her. We are not persuaded by this argument.
In 97-ORD-87, this office analyzed KRS 61.878(3). At page 4 of that decision, we observed:
This statute has been referred to as the "exception to the exceptions" to the Act, and provides public employees with the right to inspect records relating to them. 93-ORD-19. It formerly referenced only "state employee[s]," and had been interpreted by this office as being applicable to state personnel governed by Chapter 18A of the Kentucky Revised Statutes only. See, for example, OAG 87-50; OAG 90-83; OAG 91-128; OAG 91-133. It now extends, by its express terms, to all "public agency employee[s], including university employees, . . . applicant[s] for employment, or . . . eligible[s] on a register." When applicable, KRS 61.878(3) overrides all of the exemptions to public inspection set forth in KRS 61.878(1) with the exceptions of KRS 61.878(1)(k), pertaining to records or information the disclosure of which is prohibited by federal law or regulation, and KRS 61.878(1)(l), pertaining to records or information the disclosure of which is prohibited, restricted, or otherwise made confidential by enactment of the General Assembly. In addition, public agency employees do not have a right to inspect examinations or documents relating to ongoing criminal or administrative investigations by an agency. 95-ORD-97; 96-ORD-27.
Thus, KRS 61.878(3) invests public employees with a broader right of access to otherwise exempt records which relate to them, but in no way restricts their access to nonexempt records which do not relate to them. Simply stated, KRS 61.878(3) does not provide a basis for denying a public agency employee access to public records. KSU's reliance on this provision is clearly misplaced.
KRS 61.872(6)
KSU relies on KRS 61.872(6) as the basis for its final argument that Mr. Swain's request "places an unreasonable burden on the University because it covers a period of 12 years." Mr. Greene sates that "the process of determining the [sic] which records were exempt or not would require considerable time of staff and the General Counsel." Although we recognize that the question of the propriety of KSU's reliance on this provision is a much closer one, we do not believe that the University has demonstrated, by clear and convincing evidence, that Mr. Swain's request is unreasonably burdensome.
KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
In analyzing this provision, the Attorney General has recognized:
Determining when an application places an unreasonable burden upon an agency to produce voluminous public records is at best difficult. Each request for inspection of public records must be assessed based upon the facts in that particular situation. . . . However, it is stressed that this office has previously opined that a request to inspect 10,000 cases [is] certainly 'voluminous,' but not necessarily unreasonably burdensome.
OAG 90-112, p. 5, citing OAG 84-278, p. 2.
With specific reference to the agency's burden of proof relative to invocation of KRS 61.872(6), we have also recognized:
The purpose and intent of the Open Records Act is to permit "the free and open examination of public records. " KRS 61.871. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review. OAG 89-81. Where the records sought are of an identified, limited class, the request satisfies this condition. If an agency then invokes KRS 61.872(6) to authorize nondisclosure of the requested records, it bears the burden of establishing, by clear and convincing evidence, that the request places an unreasonable burden in producing . . . public records.
Only if the agency has adduced evidence which would warrant this office in finding that the burden is indeed an unreasonable one will the Attorney General uphold its action. In OAG 89-88 we ruled that the Department of Insurance had sustained this burden. The Department indicated that the requested records consisted of some 800 documents, and explained the difficulty of separating confidential from nonconfidential material. Similarly, in OAG 91-58 we held that the Louisville/Jefferson County Office of Economic Development properly denied a request for "all notes, letters, memos, and studies which might contain information about the exchange of information between the Office of Economic Development" and various offices and agencies, and that it sustained its burden of proof under KRS 61.872(6). That agency explained that the requested documents might be contained in the files of as many as thirty-one employees, located in six different offices throughout the city and county, and again described the difficulty in separating exempt from nonexempt materials.
96-ORD-42, p. 5. In the latter open records decision, the Workforce Development Cabinet successfully argued that a request which would require agency employees to expend 291 hours, at a cost of $ 4,810.96 to the agency, was unreasonably burdensome. Conversely, in 96-ORD-51, the Attorney General held that a request for 86 P-1's which reflected receipts of distinguished service awards from Personnel files did not constitute an unreasonable burden.
Kentucky State University fails to present any proof that Mr. Swain's request is unreasonably burdensome. A bare allegation that fulfilling the request "would require considerable time of staff and the General Counsel" is simply insufficient to meet the University's burden of proof. Although Mr. Swain's request encompasses twelve years, the disputed records are of an identified and limited class. In the absence of clear and convincing evidence that the request places an unreasonable burden on KSU, we have no alternative but to find that the University improperly denied Mr. Swain's request on this basis.
CONCLUSION
It is the opinion of this office that Kentucky State University violated the Open Records Act in partially denying Mr. Swain's request. The University's response was both procedurally and substantively flawed. The University failed to respond to his original request within three business days. When it did respond, the University failed to cite the specific exceptions authorizing the nondisclosure of the records withheld.
Moreover, the University improperly relied on KRS 61.878(1)(a), KRS 61.878(1)(i), KRS 61.878(3), and KRS 61.872(6) in denying Mr. Swain access to grievances, appeals, minutes of hearings arising from these appeals, and the final dispositions of these grievances and appeals. In our view, the privacy interest of employees who submit grievances and pursue appeals is, in general, subordinate to the public's interest in monitoring how KSU disposes of these grievances and appeals. Thus, the records are not exempt pursuant to KRS 61.878)1)(a). Nor are the records exempt pursuant to KRS 61.878(1)(i). The fact that the University failed to take action on a grievance or appeal is not controlling inasmuch as the decision to take no action is tantamount to final action. Finally, neither KRS 61.878(3) nor KRS 61.872(6) justify nondisclosure of the records. KRS 61.878(3) cannot be construed to restrict access to records, but must instead be construed to invest public employees with a greater right of access to their own records. With respect to KRS 61.872(6), this office cannot affirm an agency's denial of an open records request when the agency fails to present clear and convincing evidence that compliance with the request is unreasonably burdensome.
Kentucky State University should immediately make arrangements for Mr. Swain to receive copies of, or inspect, the records identified in his request.
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.
Footnotes
Footnotes