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 Theresa A. Hahn's September 1, 1998, request for a copy of her active employment application materials. For the reasons that follow, we find that the University's failure to afford Ms. Hahn timely access to the requested records, and other procedural irregularities associated with its response, constituted a violation of the Act.
On September 1, Ms. Hahn, an employee in the University's Department of Psychiatry, appeared at the University's Employment Services office where she verbally requested copies of her employment application materials. Although the office clerk initially denied her request on the basis that once submitted the records belong to the Employment Services office, Ms. Hahn was subsequently told to make a written request to Carridder Jones, director of Employment Services. This Ms. Hahn immediately did, and her written request was forwarded to the University's records custodian, William J. Morison. Having received no response to her request, on September 11, 1998, Ms. Hahn initiated this appeal.
Upon receipt of this office's notification of open records appeal, Dr. Morison responded on behalf of the university. He explained that he had not had an opportunity to review Ms. Hahn's request until September 8 because he had been out of town until this date. Dr. Morison immediately asked Carridder Jones to send him all documents which were responsive to Ms. Hahn's request, and notified Ms. Hahn in writing that he "expected to be able to respond further by September 14." Ms. Hahn responded on September 14 that she would pick up the records at the close of business that day.
Thereafter, additional problems arose. On September 21, Ms. Hahn notified this office that the copies she received were illegible, and that she was not afforded an opportunity to inspect the originals. Dr. Morison had explained to her that the condition of the copies was attributable to the fact that they were photocopied and then faxed to his office. He advised her that he would obtain "the best copies" available "in the morning," and that if all went well, he would mail them to her on the following day, September 22. To date, Ms. Hahn has not received these copies, legible or otherwise. These events are, in our view, indicative of serious irregularities in the handling of open records requests at the University of Louisville some of which rise to the level of violations of the Open Records Act.
We begin by noting that KRS 61.880 sets forth the duties and responsibilities of a public agency in responding to a request made under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requester within three working days and release the records or state the statutory basis for denying access.
In general, a public agency cannot postpone or delay this statutory deadline. The burden on the 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 afford the requester timely access to the requested records. 93-ORD-134. If, on the other hand, the records are in use, in storage, or otherwise unavailable, the agency must "immediately so notify the requester, and designate a place, time, and date for inspection" not to exceed "three days from receipt of the request," unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection. " KRS 61.872(5).
It is the opinion of this office that the University of Louisville's response to Ms. Hahn's request was deficient. Nine working days elapsed between the date of her request and the date on which she was formally notified that the records were available for inspection. This exceeds the statutory deadline by six days. The University does not offer a satisfactory explanation for this delay. Although Dr. Morison indicated that he was out of town and therefore unable to review her request until September 8, the Attorney General has recognized that in the event the official custodian is absent, "an individual should [be] appointed as acting custodian to respond to open records requests in a timely fashion." 94-ORD-86, p. 4; see also 96-ORD-185, p. 3 (holding that "the Law presumes the appointment of a records custodian 'who is responsible for the maintenance, care and keeping of public records . . .,' KRS 61.870(5), as well as the timely processing of open records requests, and in his absence, the appointment of an alternate to fulfill his duties"). The three day statutory response time is not tolled by the absence of the agency's records custodian. It is incumbent on the University of Louisville to make proper provision for the uninterrupted processing of open records requests.
It is also incumbent on the University to "make every effort to insure that University personnel are thoroughly schooled in the underlying principles, as well as the mechanics of, the Open Records Law." 94-ORD-73, p. 5. Ms. Hahn states, and Dr. Morison does not refute, that her initial request to the University's Employment Services office was denied without reference to the law. These actions were clearly violative of KRS 61.880(1). Records in the custody of that office, like all other records "which are prepared, owned, used, in the possession of or retained by [the University of Louisville]," are public records within the meaning of KRS 61.870(2), and are subject to the mandatory disclosure provisions of the law set forth at KRS 61.872(1) unless excepted from disclosure by operation of KRS 61.878(1)(a) through (1).
In particular, a public agency employee, including a university employee, may inspect and copy "any record including preliminary and other supporting documentation that relates to him." KRS 61.878(3). Although Ms. Hahn could properly be required to make her request in writing, pursuant to KRS 61.872(2), she could not be denied access to records in the University's custody without specific reference to one or more of the exceptions found at KRS 61.878(1)(a) through (1). Since the records Ms. Hahn sought related to her, she could only be denied access to them if they were made confidential by state or federal law (KRS 61.878(1)(k) or (1), or consisted of an examination or documents relating to ongoing criminal or administrative investigations by the University. KRS 61.878(3). As Ms. Hahn correctly notes, applicants for University records who were unfamiliar with their rights, and the agency's duties, under the Open Records Act, and who are rebuffed in this manner, would never know that they had been deprived of those rights by this practice. We urge the University of Louisville to undertake efforts to insure University-wide compliance with the Open Records Act.
Finally, we note that Ms. Hahn has still not received legible copies of the records she requested. While this office has, on more than one occasion, stated that "what the public gets is what [the agency has] and in the format in which [the agency] has it," OAG 91-12, p. 5, the University acknowledges that the copies she received were illegible because of its defective photocopying equipment, and agreed to provide her with "the best copies available." It is the opinion of this office that the University is obligated to furnish Ms. Hahn with legible copies of otherwise legible documents, and that it has not fully discharged its duties under the Open Records Act until it has done so. See, 93-ORD-46, p. 3 (holding that "production of records in a format which renders them inaccessible, at least as to the person requesting them, constitutes a subversion of the law"); OAG 90-50 (requiring agency to afford requester access to reader-printer and cassette player to review 35 mm film and cassette tapes of meeting which would otherwise be illegible to him). The University of Louisville is directed to take immediate steps to furnish Ms. Hahn with legible copies of the requested records.
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.