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 Louisville violated the Open Records Act in responding to a series of records requests submitted by WHAS-11 reporter Doug Proffitt. Over a period of time extending from April 1, 1998, to May 20, 1998, Mr. Proffitt requested copies of various records relating to a sexual harassment suit against former University of Louisville football coach Ron Cooper, including records relating to the defense of the suit and the settlement amount. The University released some records and withheld others, finally articulating the basis for denying access to the records withheld in a letter to Mr. Proffitt dated May 11, 1998. For the reasons that follow, we find that the University's responses were procedurally deficient but substantively correct.
Our review of the record indicates the following chronology of events:
April 1, 1998 - Mr. Proffitt requests copies of the terms of the settlement,
the amount paid to the plaintiff, and the expenses associated with defending the case.
April 6, 1998 - William J. Morison, records custodian for the University,
sends Mr. Proffitt "the only records we have that are pertinent to
April 29, 1998 - Mr. Proffitt requests that the University send him "the
amount paid to the plaintiff in the sexual harassment lawsuit" and a copy of the check written to the plaintiff, attorney Thomas Clay, and the law firm of Bolus, Jaggers and Ragland.
May 6, 1998 - Mr. Proffitt demands that the records requested on April 6
[sic] and April 29 be produced immediately. He initiates this appeal to the Attorney General.
May 7, 1998 - Mr. Morison responds that on May 6 he received the
documents he had requested from the appropriate U of L offices, but that he has discovered that the University does not have a check written to the plaintiff, Thomas Clay, or Bolus, Jaggers, and Ragland. Upon reviewing Mr. Proffitt's request, Mr. Morison notes that his first request was not a request for records, but a request for information. Mr. Morison suggests that Mr. Proffitt resubmit his request.
May 7, 1998 - Mr. Proffitt submits three separate open records requests to
the University for copies of records reflecting the amount paid to the plaintiff in her sexual harassment lawsuit against Coach Cooper, a copy of the check sent to the parties to settle the case, a copy of the check produced by the University's insurance company to settle the lawsuit, a copy of the record reflecting "any amount paid as a deductible that may have been applied to settling the . . . lawsuit, " copies of correspondence between University employees and the University's insurance company concerning the lawsuit, and copies of checks deposited to attorney Grant Helman's escrow account from March 1998 through May 1998.
May 7, 1998 - Mr. Morison sends Mr. Proffitt a copy of the "the only
record we have that was responsive to your request, the check to Grant Helman."
May 8, 1998 - Mr. Morison advises Mr. Proffitt that the University has no
records reflecting checks produced by its insurance company to settle the suit or records relecting the amount paid as a deductible, but faxes him "the twenty-eight pages of documents sent to the Courier-Journal in response to its open records request."
May 8, 1998 - Mr. Morison does not issue a written response to Mr.
Proffitt's request for correspondence between the University and its insurance company and checks deposited in Grant Helman's escrow account, but relies on his earlier release to Mr. Proffitt of the twenty-eight documents furnished to the Courier-Journal.
May 11, 1998 - Mr. Morison sends a three page letter to Mr. Proffitt in
which he summarizes Mr. Proffitt's records requests and the University's responses, and confirms the release of the twenty-eight documents. He notes that these records were released to Mr. Proffitt after he received a call from an employee of the University's News and Information office with whom Mr. Proffitt had been in contact. Mr. Morison maintains that although these are not the documents Mr. Proffitt previously requested, and although his request was not in writing, he "decided to comply with [Mr. Proffitt's] wish." In closing, Mr. Morison observes:
On or about May 20, 1998 - Mr. Proffitt submits another request to
the University for correspondence and other records relating to the sexual harassment lawsuit which were sent or received by Tom Jurich, athletics director, and any correspondence or records exchanged by Dr. John Shumaker, Tom Lyons, or Tom Jurich and the U of L Athletic Association.
May 20, 1998 - Mr. Morison responds that neither the Athletics
Department nor the President's office have any such records, and refers Mr. Proffitt to his May 8 and May 11 responses relative to records in the custody of University counsel.
In a follow-up letter to this office, University counsel Tom Lyons elaborated on the events surrounding this dispute:
Regarding the request dated April 29, it appears that Dr. Morison's reply did not go back to Mr. Proffitt until May 6 instead of May 4. The reason for the delay of two days was the need to check several departments for files that were still active. In the future, Dr. Morison will endeavor to respond on at least an interim basis within the three days. Where specific departments or individuals are not identified or documents are not in repose, there will exist the potential for delays.
Mr. Proffitt states in his complaint of May 6 that the University never told him certain documents were not in its possession. While we are not sure exactly what he refers to, if he does not identify documents precisely, it is not possible to give a precise response. For example, in his letter to Dr. Morison dated May 6, Mr. Proffitt states that his request was sent April 6 and then again on April 29. Dr. Morison responded to Mr. Proffitt on April 6 regarding his April 1 request stating that all responsive documents were attached. The reason he did not get the documents yielded by his April 29 request, aside from wording differences, on April 6 is that inspection of the April 29 response will show most of those new documents did not exist on April 1 (or 6). Looking at all of Mr. Proffitt's requests recently and the average response time, I believe Dr. Morison has clearly made a consistent good faith effort.
Inasmuch as "the procedural requirements of the Open Records Act are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request," the legal standard is not whether there was a good faith effort to comply, but rather whether the agency did in fact comply. 93-ORD-125, p. 5. This duty has been described many times, for example, in 93-ORD-134, p. 9, 10, where we said:
KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records, respond in writing to the requesting party within three working days, and indicate whether the request will be granted.
Nothing in the statute permits an agency to postpone or delay this statutory deadline[.] 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 otherwise 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.
In the event that the requested records are not available for immediate inspection, the agency must provide "a detailed explanation of the cause . . . for further delay and the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.872(5).
Conversely, the requester, who is invested with certain rights of access, also bears a measure of responsibility in formulating his request. Thus, in 97-ORD-46, we observed:
As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review. OAG 89-81; OAG 91-58. Thus, in a series of opinions, we have held that "blanket requests for information on a particular subject without specifying certain documents need not be honored." OAG 76-375; OAG 83-386; OAG 85-88; OAG 89-8; OAG 89-61; OAG 91-58. Elaborating on this position, in OAG 89-8, at p. 2, we observed:
If a requester cannot describe the documents he wishes to inspect with sufficient specificity there is no requirement that the public agency conduct a search for such material. OAG 84-342; OAG 89-8.
97-ORD-46, p. 3, 4.
Many of the problems associated with their written exchanges derive from the fact that Mr. Proffitt's requests were being submitted as events unfolded, and as records documenting those events were being generated, rather than after the fact. Obviously, Mr. Proffitt could not identify with particularity, and the University could not produce, records which had not yet been generated. Nevertheless, we find that the University erred in failing to properly respond to requests which triggered its duties and obligations under the Act.
In responding to Mr. Proffitt's April 29 request, the University exceeded the statutory deadline by two days. Although this may not seem an egregious violation of the Act, we must bear in mind that no records were disclosed to him on this date. Instead, the University took the position that Mr. Proffitt's April 29 request was improperly framed as a request for information rather than records, and urged him to resubmit the request. It was not until May 7 that Mr. Proffitt obtained a document responsive to his April 29 request, namely a check issued by the University to the escrow account of Grant Helman in the amount of $ 15,000. And although he originally requested access to records reflecting the terms of the settlement agreement on April 1, Mr. Proffitt did not obtain a copy of the settlement, finally executed on April 16, 1998, until May 8, 1998, when the University faxed him twenty-eight documents which it had previously furnished to The Courier-Journal .
Moreover, the University's responses were equivocal. While this office has recognized that a public agency is not required to issue "an unequivocal denial of a nonspecific request for records," 96-ORD-101, p. 3, we do not believe that Mr. Proffitt's requests were "so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass." Id. And if no records existed on a given date which satisfied Mr. Proffitt's request, the University was obligated to affirmatively so state. On this issue, the Attorney General has opined:
In OAG 91-101, this office held that a public agency's response is insufficient under KRS 61.880(1) if it fails to advise the requesting party whether the requested record exists. Citing OAG 86-38, at page 3, we construed the obligation of the agency relative to a request to inspect documents, noting:
In other words, "If a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4.
97-ORD-161, p. 3, 4.
On at least two occasions, the University failed to fully discharge its obligations under the Open Records Act by advising Mr. Proffitt that no records existed on the date of his request which satisfied that request. When, on April 1, Mr. Proffitt requested access to the terms of the settlement agreement, the University was obligated to advise him that no such record then existed because no such record had yet been generated. Again, on May 7 when it responded to Mr. Proffitt's request for correspondence between University employees and the University's insurance company, the University should have advised him that no such correspondence existed (if this was, in fact, its position). The University may wish to bear these observations in mind in responding to future open records requests.
Turning to the substantive issues in this appeal, we find that the University properly denied Mr. Proffitt access to records which fall within the parameters of the exceptions cited in its May 11 response. Indeed, it is this type of response which would have been appropriate in its earlier communications with Mr. Proffitt. As the Kentucky Court of Appeals recognized in Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996):
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. We cannot agree . . . that . . . [a] limited and perfunctory response to [a] request even remotely complie[s] with the requirements of the Act--much less that it amount[s] to substantial compliance.
Echoing this decision, in 97-ORD-41 we stated that "While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), . . . we believe that the [agency] is required to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable, and to release any documents which do not fall squarely within the parameters of the exceptions and are therefore not excludable." 97-ORD-41, p. 6, 7 (footnote omitted).
Kentucky's courts have also recognized that:
Despite its manifest intention to enact a disclosure statute, the General Assembly determined that certain public records should be excluded from disclosure. Among such records are documents "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." KRS 61.878(1). Also excluded are "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; " and "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." KRS 61.878(1)[(i)-(j)]. From the exclusions we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to statutory rights of personal privacy and the need for governmental confidentiality. A cursory examination of KRS 61.878 reveals an extensive list of matters excluded from public access, and this also suggests an absence of legislative intent to create unrestricted access to records.
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577, 578 (1994). "Of primary concern is the nature of the information which is the subject of the requested disclosure, " and not the identity of the requester or the purpose for which the request is made. Lexington-Fayette Urban County Government v. Lexington Herald-Leader Company, Ky., 941 S.W.2d 469, 472 (1997).
In the latter case, the Supreme Court addressed the propriety of a public agency's refusal to release copies of final settlement agreements. The Court concluded that "in balancing the sacrosanct right of an individual to privacy against legitimate public concerns and the right of the public to inquire into the workings of government, we find that a settlement of litigation between private citizens and a governmental entity is a matter of legitimate public concern which the public is entitled to scrutinize." Lexington-Fayette Urban County Government at 473. Nevertheless, this right of access does not extend to all documents relating to the lawsuit which culminated in the settlement agreement. The need for governmental confidentiality has thus been recognized where the record requested is in draft form (see, e.g., OAG 89-34, 94-ORD-38, and 97-ORD-51 holding that a draft document is exempt per KRS 61.878(1)(j) unless formally adopted by the agency), is shielded from disclosure by the attorney client privilege or represents attorney work product (see, e.g., OAG 92-214, 94-ORD-88, and 97-ORD-127 holding that the privilege extends to documents reflecting communications between attorney and public agency client if they constitute legal advice or reveal the substance of a client confidence), or constitutes interdepartmental memoranda in which opinions are expressed and policies formulated (see, e.g., 96-ORD-21, 96-ORD-66, and 93-ORD-26 holding that correspondence, documentation, working notes and other records generated by a public agency which contain preliminary recommendations or consist of preliminary memoranda in which opinions are expressed, and which are not incorporated into final agency action, may properly be withheld) . To the extent that the records withheld by the University qualify for exclusion under the cited exceptions, we find no substantive error in its response. Thus, although its responses were procedurally deficient, the University of Louisville did not violate the Open Records Act in withholding groups of records identified in its May 11 and 20 responses for the reasons stated in those responses.
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.