Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Kentucky complied with the Open Records Act in responding to Amita Rastogi's November 6, 1997, request for various records pertaining to the University's decision to terminally reappoint her as a faculty member in September, 1996. At issue is the adequacy of the University's search and of its responses to Dr. Rastogi's requests. Based on our review of the University's response, and supporting documentation, we find that the University complied with the Act, and that it has fully discharged its obligations relative to her November 6 request. We address each of the records identified in that request, and the adequacy of the University's response.
1. "My evaluations from July 1994 to March 1996, performed under the chairmanship of Dr. Robert Salley. These were unavailable in the records or the evaluation file provided thus far, but you stated that such evaluations may be located 'in another section of the folder'."
In its November 12 response, the University advised Dr. Rastogi that if she were evaluated by Dr. Salley from July, 1994, to March, 1996, she would have received a copy of the evaluation. The University indicated further that searches conducted by the office of the records custodian, the Department of Surgery, and the Dean's office had yielded no results.
In a follow-up letter to this office, the University's records custodian, George J. DeBin, provided an extensive explanation for the dearth of evaluations pertaining to Dr. Rastogi. Although Dr. Rastogi continues to express concern about the University of Kentucky's failure to generate evaluations, we find that the University has adequately documented its efforts to locate the evaluations, 94-ORD-141, and that the search methods used were those which could reasonably be expected to produce the requested records. 95-ORD-96. Further, we find that the University has provided a reasonable explanation for the nonexistence of these evaluation based on Dr. Rastogi's employment status and the dates of her employment. 94-ORD-140. In the absence of concrete evidence to the contrary, this office has no reason to doubt the University's assertions that all existing evaluations have been furnished to Dr. Rastogi, and no other evaluations exist.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. While there may be occasions when, under the mandate of this statute, the Attorney General refers an open records appeal and decision to the Department for Libraries and Archives for further inquiry under Chapter 171, we do not believe that this appeal warrants additional inquiries. The University of Kentucky has affirmatively represented to this office that all existing records which satisfy this portion of Dr. Rastogi's request have been released to her and has explained why no other evaluative records exist.
2. "On February 6th 1996 Dr. Young wrote to Dr. Wilson in regard to my appointment as Assistant Professor 'based upon the discussions and decisions in our meeting of January 5th 1996.' Please provide me with the minutes of this meeting on January 5th.
In denying this portion of Dr. Rastogi's request, the University stated that there are no minutes of the meeting. Nor, the University added, is there any other written documentation of the meeting. Inasmuch as the provisions of the Open Meetings Act which mandate the recording of minutes of actions taken only apply to meetings of public agencies, KRS 61.835, and the January 5 meeting between Dr. Young and Dr. Wilson cannot properly be characterized as a meeting of a public agency, OAG 94-25, we find that the University properly denied request number 2 on the basis that no such records exist.
3. "Dr. Glenn issued a letter on may 10th, 1996 stating 'It has been determined that we will not act on Dr. Rastogi's request for clinical privileges in the University of Kentucky Hospital at this time.' This decision usually requires a written explanation to/from the Dean (Dr. Emery Wilson), and Dr Ramsey, chief of staff, and the chairman of Surgery, and Cardiothoracic surgery. I request this correspondence which must have been used to justify this decision."
In responding to this request, the University advised Dr. Rastogi that a decision not to act on a request for clinical privileges need not be supported by written documentation. Having reviewed the files of the Dean, the chief of staff, and the chairman of surgery and cardiothoracic surgery, the University affirmatively stated that no correspondence exists which satisfies this portion of Dr. Rastogi's request. We find that the University actions were consistent with the rule announced in OAG 90-26, OAG 91-101, and most recently in 97-ORD-161, in which this office held that "if a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4.
4. "Dr. Glenn issued a letter on May 10th, 1996 stating 'I need from each of you a brief letter indicating that you do not feel that Dr. Rastogi should be appointed to our faculty', and another letter on May 21st 1996 stating 'However, we recommend that this be a terminal reappointment and that Dr. Rastogi be so advised.' This decision usually requires a written explanation to/from chairman of Surgery, the Dean (Dr. Emery Wilson), Dr Holsinger, and the board of trustees. I request this correspondence that must have been used to justify this decision."
In responding to this request, the University indicated that the May 21 letter is the only letter that Dr. Glenn wrote to Dean Wilson, and that no additional correspondence exists. In its follow-up letter to this office, the University elaborated. Mr. DeBin explained that "it is University policy not to provide written reasons in cases of non-renewal of appointment, " and furnished this office with a copy of ARII-1.01-1, IV-B in support. Again, we find that the University offered a reasonable explanation for the nonexistence of written reasons for the decision not to renew her appointment, and, in the absence of evidence that written documentation is required or does exist, we accept the University's assertions.
5. "On October 30th 1996, Ms. Virginia Scott made a recorded statement in court, that Mr. Tony Goetz, Administrator, University of Kentucky, had provided her with documentation stating that I was not in good standing at the UK, and that I had suffered a reversal of privileges. This information was not apparent on review of documents provided by UK through the open records appeal. Notes made by Ms Barb Petit dated May/June 1996 state ' took it to Tony Goetz . . . send the attached note 'reference info' to Gay ' Please supply the information referred to in these notes that was sent to Tony Goetz and to Gay Elstee."
In denying this portion of Dr. Rastogi's request, the University provided a somewhat confusing explanation the substance of which appears to be that the notes made by Ms. Petit do not relate to Ms. Scott's statements, or documentation which Tony Goetz provided to Ms. Scott supporting her statements. Instead, the notes relate to an earlier open records request made by Dr. Rastogi. The University maintained that these notes were released to Dr. Rastogi along with the contents of Barb Petit's files.
The basis for the University's response, in this instance, is that all records relating to Dr. Rastogi and maintained by Barb Petit have been released. The University is not obligated to honor a duplicative request for records in the absence of some justification for resubmitting the request. 95-ORD-47; 95-ORD-105. We therefore affirm the University's response to this request.
6. "On 1/22/96 Ms. Barb Petit made notes about a meeting between Dr. Young, and Dr. Salley, which alludes to 'standard clinical privileges' and a 'commitment - fair and just' and notes to 'see all that in writing.' Please provide me with the minutes of this meeting and any written documents generated as a result of this meeting."
We affirm the University's denial of this request for the same reasons set forth in the discussion following request number 2 above.
7. "On 1/22/96 Ms. Barb Petit made notes about papers indicating vindictiveness of individuals towards Dr. Rastogi, which were shared with Dr. Salley and Dr. Holsinger. Please provide me with these documents."
In responding to this request, the University maintained that Barb Petit's notes of this meeting reflect that Dr. Rastogi made comments about the vindictiveness of individuals toward her, but that no one else in attendance made any such comments. Further, the University maintained that Dr. Rastogi referred to papers in her custody that she shared with Drs. Salley and Holsinger. For this reason, the University asserted that it does not have the records.
Again, the University affirmatively states that the requested records are not in its custody. Again, in the absence of evidence to the contrary, we assume the truthfulness of these statements. The University fully discharged its obligations under the Open Records Act by advising Dr. Rastogi that the "papers indicating vindictiveness of individuals toward [her]" are not in its custody. KRS 61.872(4). With respect to Ms. Petit's notes of the meeting, we assume that Dr. Rastogi has already received a copy (see discussion following request number 5 above). If not, she is entitled to a copy of these notes, upon request, pursuant to KRS 61.878(3).
8. "All documents relating to me in the possession of the Office of the Chancellor."
In responding to this request, the University stated that all records in the Chancellor's office relating to her, consisting of seven electronically reproduced pages, were released to Dr. Rastogi on October 1, 1997. The University confirmed that upon additional inquiry the Chancellor's office advised that it has no other records relating to her. We affirm the University's response to this request for the reasons delineated in the discussion following request number 1 above.
9. "Sections II.F and II.G of the 'procedural flow chart for proposals on initial appointment, reappointment, joint appointment, terminal reappointment, and post-retirement appointment in the University system' (AR II-1.0-1 4/30/93)."
In responding to this request, the University furnished Dr. Rastogi with copies of AR II-1.01, sections F and G. There is no appealable issue relative to this request.
Conclusion
This appeal raises a number of issues pertaining to records creations and management which are largely incapable of resolution under the Open Records Act. While we appreciate Dr. Rastogi's continuing concerns about the adequacy of the University's recordkeeping in relation to its decision to terminally reappoint her, we also recognize that the University has made extraordinary efforts to comply with her requests. Our role in adjudicating the open records dispute between these parties is a limited one. Pursuant to KRS 61.880(2)(a), the Attorney General is charged with the duty to review Dr. Rastogi's request and the University's response, and issue a written decision stating whether the University violated the provisions of KRS 61.870 to 61.884. In this instance, we find that the University did not violate the Open Records Act.
Because the issue of the University's response to Dr. Rastogi's request for records pertaining to her E.E.O.C. complaint, and the issue of the propriety of the University's invocation of the attorney-client privilege, both of which she raised in a separate letter to this office, were not presented in Dr. Rastogi's November 6 request or the University's November 12 response, they are not ripe for adjudication in this appeal.
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.