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 Kentucky Revenue Cabinet violated the Open Records Act in responding to Cabinet employee Susan F. Stivers's November 23, 1998, request for copies of various records in the Cabinet's custody. For the reasons that follow, we find that the Cabinet's response constituted a partial violation of the Act.
In her November 23 request, Ms. Stivers asked that she be furnished with copies of "any and all documents, in whatever form, that contain [her] name or relate to [her], including preliminary and other supporting documents, from January 1, 1995, to the present." In addition, Ms. Stivers requested copies of:
1) Applications of all the attorneys who applied for the Attorney Manager position in 1997.
2) Evaluations of all attorneys employed within the Division of Legal services, both current and former, for the time period January 1, 1995, to the present.
3) Distinguished Service Awards (DSA) letters of justification for all attorneys employed within the Division of Legal Services, both current and former, and supporting documents for the time period January 1, 1992, to the present.
4) DSA documents relating to Cathy Snell, Celia Dunlap, and [herself].
5) P-1s for all staff employed within in the Division of Legal Services, both current and former, for the time period January 1, 1995, to the present.
6) Timesheets, including the handwritten timesheets maintained in the Division of Legal Services, for all attorneys employed within the division, both current and former, for the time period January 1, 1995 to the present.
7) Assignment lists for all attorneys employed within the Division of Legal Services, both current and former, for the time period January 1, 1995, to the present.
Although Ms. Stivers has filed an EEO claim against the Cabinet, and is represented by attorney Debra Ann Doss in this matter, she submitted her open records request in her individual capacity and without the assistance of counsel.
In a response directed to Ms. Stivers, and dated November 30, 1998, Anita M. Britton, an attorney with a private law firm who is representing the Cabinet regarding Ms. Stivers's EEO complaint, partially denied her request. Relying in general on KRS 61.872(6), the Cabinet refused to honor Ms. Stivers's request for documents in its custody which relate to her or contain her name generated in the period from January 1, 1995, to the present. Ms. Britton noted that such records "may number in the thousands," commenting:
The statute recognizes that Open Records Requests may impose an impermissible burden on the agency. KRS 61.872(6). Included among those documents which mention your name are home address lists, birthday lists, E-mail messages, case filings, routine correspondence and a myriad of other documents. Unless you are able to narrow your request, it is virtually impossible for the agency to make a bona fide response to this request as it presently stands.
The Cabinet did, however, specifically identify and index thirteen documents relating to Ms. Stivers's EEO complaint to which it denied her access on the basis of KRS 61.878(1)(l) and KRS 422A.0503, the attorney client privilege. Ms. Britton explained:
Certain documents or materials which would be deemed responsive to your first most broad request have among them documents and materials addressed to or prepared or assembled by legal counsel for the Commonwealth of Kentucky and made for the purpose of facilitating the rendition of professional legal services to the client-e.g., responding to then-pending personnel matters as well as in anticipation of litigation growing out of those matters. . . . These documents and materials are exempt from disclosure under KRS 61.878(1)(l) as work product protected and lawyer-client privileged communications. A Privilege Index identifying those documents for which a claim of privilege or work product protection is asserted is attached hereto. . . .
Nevertheless, the Cabinet agreed to furnish Ms. Stivers with copies of her application for the position of attorney-manager, her evaluations, her request for a distinguished service award, and other DSA documents relating to her in an attempt to partially comply with requests one through four of her November 23 open records application.
With respect to documents relating to other employees in the Division of Legal Services, the Cabinet denied Ms. Stivers's request for "all other applications, evaluations or Distinguished Service Award communications that affect other employees, past and present. . . ." It was the Cabinet's position that these records are excluded from public inspection by KRS 61.878(1)(a) insofar as "public disclosure will constitute a clearly unwarranted invasion of personal privacy." The Cabinet also relied on KRS 61.878(1)(j) as a basis for denying Ms. Stivers access to DSA letters of justification and supporting documents, and in particular those DSA documents relating to Cathy Snell and Celia Dunlap, arguing that "those items are both preliminary in nature and include opinions of the author." In addition to these materials, the Cabinet denied Ms. Stivers access to assignments lists for attorneys employed in the Division of Legal Services, again asserting the attorney client privilege and work product protection.
The Cabinet did, however, agree to furnish Ms. Stivers with copies of employee P-1s, indicating that, under authority of
Zink v. Commonwealth, Ky.App., 902 S.W.2d 825 (1994), they would "be redacted where appropriate to remove personal details such as home address, telephone number, social security numbers and other uniquely personal materials contained thereon." Similarly, the Cabinet agreed to release the time sheets of Division staff, again indicating that they would be redacted to exclude "any handwritten material which would reveal the mental impressions, conclusions, opinions or legal theories of the Commonwealth's legal counsel on the basis of KRS 61.878(1)(l). . . ." The Cabinet denied in its entirety Ms. Stivers's request for attorney assignment lists on the same basis.
In closing, Ms. Britton noted that although Ms. Stivers's request was received in the Secretary's office at 4:15 p.m. on Monday, November 23, 1998, it was not forwarded to Ms. Britton until November 25, one day before the Thanksgiving holiday. Invoking KRS 61.872(5), she asserted that there had "not been adequate time to assemble and redact the documents" requested, but advised Ms. Stivers that they would "be available for inspection not earlier than Monday, December 21, 1998."
Having received no documents in response to her request, on December 23, 1998, Ms. Stivers initiated this open records appeal. The Cabinet responded to the appeal, through Ms. Britton, on December 30, explaining that by agreement with Debra Ann Doss, the attorney representing Ms. Stivers in the matter of her EEO complaint, the deadline for the Cabinet's response had been extended to January 4, 1999. By letter dated January 5, 1999, Ms. Stivers notified this office that as of that date she had received no records from the Cabinet. Ms. Stivers's requests and the Cabinet's responses are summarized below, along with our analysis of the propriety of those responses.
Request for copies of "all documents, in whatever form, that contain [Ms. Stivers's] name or relate to [her], including preliminary and other supporting documentation, from January 1, 1995, to the present."
In partially denying this portion of Ms. Stivers's request, the Cabinet relied on KRS 61.872(6), arguing that the request was "impermissibly burdensome." We agree. 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 construing this provision, the Attorney General has observed:
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 voluminous public records.
92-ORD-1261, p. 3. The records to which Ms. Stivers requested access were not identified with "reasonable particularity," nor were they of an identified, limited class. The Cabinet correctly notes that "such records may number in the thousands." Given the lack of specificity of this request, the Cabinet could not estimate the number of records it encompassed or the amount of time its employees would expend in locating, retrieving, and producing the records.
Ms. Stivers asked that the Cabinet provide her with copies of all records relating to her or containing her name for a four year period. In order to comply with such a request, the Cabinet would be required to review every record, regardless of physical form or characteristics, which was prepared, owned, used, in the possession of or retained by it in that period, to determine if Ms. Stivers's name appears in or on the record or if it relates to her. As the Cabinet correctly notes, this would include "home address lists, birthday lists, e-mail messages, case filings, routine correspondence and a myriad of other documents." Although "it is the legislative intent that public agency employees exercise patience and long-suffering in making public records available for public inspection, "OAG 77-151, p. 3, public employees "are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time." OAG 76-375, p. 4. As framed, Ms. Stivers's request imposes an unreasonable burden on the Cabinet.
Our conclusion is not altered by the existence of 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.
KRS 61.878(3) has consistently been construed to vest public agency employees with a right of access to otherwise exempt public records which relate to them. It has not been construed to relieve public agency employees of the duty to describe those records with sufficient specificity to permit the agency from which the records are sought to identify, locate, and retrieve the records. Nor has it been construed to impose an additional duty on the agency to conduct an exhaustive exhumation of records or embark on an unproductive fishing expedition in order to satisfy a nonspecific request. It is our view that a request for any and all records which contain a name, a term, or a phrase is not a properly framed open records request, and that it generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records. We therefore affirm the Revenue Cabinet's partial denial of Ms. Stivers's request for "any and all documents, in whatever form, that contain [her] name or relate to her . . . from January 1, 1995, to the present," but encourage Ms. Stivers and the Cabinet to work toward an amicable resolution of this dispute - Ms. Stivers by framing her request more narrowly, and the Cabinet by working with her in a spirit of cooperation.
As an additional basis for denying Ms. Stivers's access to records containing her name or relating to her, the Cabinet identified, indexed, and withheld thirteen records relating to her EEO complaint on the basis of KRS 61.878(1)(l) and KRS 422A.0503, the attorney client privilege. Again, we affirm the Cabinet's partial denial of her request on this basis. In 98-ORD-124, 1 this office addressed a similar issue, but stopped short of wholly affirming the Revenue Cabinet's denial of an employee's request on the basis of KRS 61.878(1)(l) and the attorney client privilege and work product doctrine. Critical to our analysis was the Cabinet's failure to identify specific records shielded from disclosure, and to articulate the basis for its denial in terms of the requirement of the privilege. At page 7, we observed:
The Cabinet has offered virtually no proof that all of the records identified in . . . [the] request were generated in the course of the attorney client relationship, represent a communication by or to the client relating to the subject matter upon which professional advice was sought, or were handled in a confidential manner, thus qualifying for exclusion as records protected by the attorney client privilege, or that they consist of "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative" of the Cabinet concerning [the requester's legal] actions, thus qualifying for exclusion as attorney work product.
We concluded that the Cabinet could properly withhold those records which satisfied the requirements of KRS 442A.0503 and CR 26.02(3)(a), and related to the requester's legal actions, but could not withhold every document generated in the course of those actions simply because it was represented by an attorney in the matter.
In the appeal before us, the Cabinet has identified and indexed thirteen documents which, in its view, fall squarely within the parameters of the exception, and advanced the claim that they were prepared or assembled for the purpose of facilitating the rendition of legal services in the matter of Ms. Stivers's EEO complaint. The Cabinet avoids "painting with broad brush strokes and . . . [instead focuses on] the details." 98-ORD-124, p. 8. To the extent that our decision in 98-ORD-124 recognized the right of a public agency to withhold records made confidential by enactment of the General Assembly, including records shielded from disclosure by the attorney client privilege and work product doctrine, it is incorporated by reference as the basis for our decision affirming the Cabinet's partial denial of Ms. Stivers's request.
Request for copies of applications of all attorneys who applied for the Attorney Manager position in 1997, evaluations of all attorneys employed in the Division of Legal Services from January 1, 1995, to the present, distinguished service award letters of justification for all attorneys in the Division of Legal Services, and supporting documents, from January 1, 1995, to the present (including Ms. Stivers, Cathy Snell, and Celia Dunlap).
In denying Ms. Stivers's request for applications, evaluations, and distinguished service award communications submitted by, or relating to, other employees in the Division of Legal Services, the Cabinet relied on KRS 61.878(1)(a). 2 We affirm, in part, these denials on the basis of the decisions cited below.
With respect to applications of unsuccessful applicants for public employment, the Attorney General had generally recognized that the public's interest in disclosure is outweighed by the privacy interests of the unsuccessful applicants. See, for example, 96-ORD-1 and OAG 90-113. These opinions were premised, in part, on the notion that disclosure that they were not selected "may embarrass or harm applicants who failed to get a job [since] other people were deemed better qualified for a competitive appointment. "
Core v. United States Postal Service, 730 F.2d 946 (4<th> Cir. 1984) cited in 96-ORD-1. 3 Against this significant privacy interest, we weighed the minimal public interest identified by the court in Core . Although disclosure of the application of the person promoted would serve the public interest by revealing his or her qualifications, "disclosure of the qualifications of people who were not appointed is unnecessary for the public to evaluate the competence of [the person] appointed." Core at 945. Indeed, "comparisons of all applications may be misleading, because the appointments were made on the basis of both . . . applications and . . . interviews." Id. Applying this analysis to the appeal before us, we conclude that the Cabinet properly denied Ms. Stivers's request for the applications of the unsuccessful applicants for the attorney-manager position, but that it should furnish her with a copy of the application of the individual who was ultimately appointed to the position.
Similar reasoning has generally been employed in determining the propriety of an agency's decision to withhold employee evaluations. With limited exception, we have taken the position that the evaluations of public employees are excluded from inspection by operation of KRS 61.878(1)(a), (i), and (j). See, for example, OAG 77-394 (university professor); OG 79-318 (teacher); OAG 80-58 (policeman); OAG 91-62 (branch manager). Fundamental to these opinions was the recognition that little public interest is served by disclosure of an evaluation since it is a matter of opinion and does not represent any action on the part of the agency or disclose how the agency conducts its business. Conversely, the privacy interests of the employee evaluated are weighty indeed. Thus, at page 4 of 92-ORD-1145, we affirmed the right of public agencies to withhold employee evaluations "since disclosure of their evaluations may spur unhealthy comparisons, breeding discord in the work place, and result in injury and embarrassment to the employee." On the basis of the cited opinions, we find that the Revenue Cabinet properly withheld evaluations of all attorneys employed with in the Division of Legal Services from January 1, 1995, to the present.
The Attorney General has also approved the decision to deny public access to supporting documentation relating to unsuccessful nominees for distinguished service awards. In 98-ORD-155, we stated that where an award is not conferred, letters of recommendation and other supporting documentation are not adopted or incorporated into final agency action and therefore retain their preliminary character under KRS 61.878(1)(i) and (j). Although we did not address the question whether the records were also exempt pursuant to KRS 61.878(1)(a), as a clearly unwarranted invasion of personal privacy, we believe that disclosure would again implicate the employee's interest in avoiding embarrassment and unhealthy comparisons. See also, 96-ORD-51 (holding that agency properly withheld employee evaluations of individuals who received DSAs). Accordingly, we affirm the Cabinet's denial of Ms. Stivers's request for DSA documents relating to unsuccessful nominees.
We do, however, find that the Cabinet improperly withheld DSA letters of justification and other supporting documents relating to employees upon whom DSAs were conferred. Although we have never expressly so stated, this is the logical inference to be drawn from 98-ORD-155. Because the documents reflect final agency action or are adopted as the basis for that action, they forfeit their preliminary character, and are not excluded from inspection by operation of KRS 61.878(1)(i) and (j). Nor do we believe such records qualify for exclusion under KRS 61.878(1)(a). Disclosure of records supporting conferral of these awards will serve the public interest by facilitating public oversight of agency action. The competing privacy interest of the employees upon whom the awards are conferred is sharply reduced. Official recognition for distinguished public service is embarrassing only to those of the greatest humility and most delicate sensibilities. We believe that this remote possibility of embarrassment is outweighed by the public's interest in overseeing agency action in awarding DSAs. The Cabinet should therefore furnish Ms. Stivers with copies of DSA letters of justification, and supporting documentation, for attorneys in the Division of Legal Services from January 1, 1995, to the present upon whom the awards were conferred.
Request for P-1s for all staff employed in the Division of Legal Services from January 1, 1995, to the present.
Consistent with this office's decisions in 93-ORD-15 and 96-ORD-51, we find that the Cabinet acted within its authority in releasing employee P-1s after redacting personal information such as home address, home telephone number, and social security numbers. As noted, this action finds support in 93-ORD-15 recognizing that "an employee's P-1 is a document, which when approved, notifies the employee of an action affecting his or her status, pay, position, classification or other condition of employment[, but] portions of the P-1 contain information of a personal nature within the meaning of KRS 61.878(1)(a)." 93-ORD-15, p. 3.
Request for time sheets, including handwritten time sheets maintained in the Division of Legal Services, and assignment lists, for all attorneys employed in the Division from January 1, 1995, to the present.
In denying Ms. Stivers's request for attorney time sheets, in part, and her request for attorney assignment lists, in whole, the Cabinet relied on KRS 61.878(1)(l) and the attorney client privilege and work product doctrine. Ms. Britton indicated that the Cabinet would not release privileged communications or handwritten material which reveal the mental impressions, conclusions, opinions, or legal theories of Commonwealth's counsel. It is the opinion of this office that the Cabinet properly withheld attorney assignment lists on the authority cited, but improperly redacted entries on attorney time sheets on the same basis inasmuch as those entries contain only general descriptions of services performed rather than substantive legal matters.
With respect to records documenting the rendition of legal services by public agency counsel or private counsel under agency contract, the following principles have been established:
Records which reflect the general nature of services rendered are not protected by the attorney client privilege. . . . Only those records which disclose communications by the client or attorney in relation to the specific matter for which the attorney was retained can be withheld from public inspection [, e.g., substantive legal matters].
OAG 92-92, p. 6. "This resolution of the issue of the applicability of the attorney client privilege to [time] records," we concluded, "subserves both the [agency's] interest in protecting privileged information and the public's interest in monitoring the [agency's] activities to insure that it is properly executing its statutory function and pursuing the public good," Id. at 6. Thus, public agencies must disclose records which describe, in general terms, the nature of the services rendered such as, for example, "research," "witness interviews," "discussions with client." They may exercise their discretion in withholding records, or redacting portions of records, which disclose substantive matters and litigation strategy. See also, OAG 92-14, 95-ORD-18.
Our review of the attorneys' assignment lists confirms the existence of substantive legal matters protected from disclosure by the attorney client privilege and the work product doctrine. The lists contain protected communications between the Cabinet, as client, and its attorneys relating to the status of pending cases the substance of which falls squarely within the parameters of the cited confidentiality provisions. The same cannot, in our view, be said of the time sheets. In general, the Attorney General has declared that time sheets are open to inspection because they "represent[] a confirmation of public funds expended for public service. " 96-ORD-239, 4. At page 4 of the latter decision, we observed:
On [the] time sheet, the public employee verifies that he performed public service on certain hours and days, that he received compensatory time for public service worked above the standard work week, and that he did not perform public service on certain hours and days and thereby forfeited vacation leave or sick leave.
We have reviewed a time sheet submitted by an attorney in the Division of Legal Services, and find nothing in that record of a substantive nature. Instead, it contains a general description of legal services rendered. We therefore conclude that the Cabinet properly withheld the attorney assignment lists for attorneys employed in the Division of Legal Services, but improperly withheld portions of the attorneys' time sheets. The Cabinet should provide Ms. Stivers with unredacted copies of the time sheets forthwith.
Timeliness of Revenue Cabinet's response.
In closing, we note that the Revenue Cabinet failed to afford Ms. Stivers timely access to the nonexempt records identified in her request. 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 under the Act, respond in writing to the requesting party within three working days, and indicate whether the request will be granted. If the agency denies all or any portion of the request, it must "include a statement of the specific exception authorizing the withholding of the record," and briefly explain how the exception applies to the record withheld.
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).
Ms. Stivers's request was submitted on November 23, 1998. On November 30, Ms. Britton notified her that the Cabinet had not had sufficient time to assemble the requested records and indicated that they would be available for inspection "not earlier than Monday, December 21, 1998." Ms. Britton later obtained Ms. Stivers's attorney's consent to an extension of this deadline to January 4. As of January 5, Ms. Stivers had received no documents. Well over two months elapsed between the date of her request and the date on which the nonexempt records were released. 4 A delay of this duration suggests a disregard for the procedural requirements of the Open Records Act. While this office has recognized the right of a public agency to process open records requests through its attorneys, this practice cannot be used to delay or otherwise impede access to public records. 93-ORD-134. We urge the Cabinet to review its policy relative to the processing of open records requests to insure that requesters are afforded timely access to public records.
Conclusion
We find, in sum, that the Revenue Cabinet properly refused to honor Ms. Stivers's blanket request for all records relating to her or containing her name on the basis of KRS 61.872(6). We further find that the Cabinet properly withheld thirteen indexed documents relating to Ms. Stivers's EEO complaint on the basis of KRS 61.878(1)(l) and the attorney client privilege and work product doctrine. The Cabinet acted consistently with the Open Records Act in denying Ms. Stivers access to the applications of unsuccessful applicants for the position of attorney manager on the basis of KRS 61.8781)(a), but should immediately furnish her with a copy of the application of the attorney who received the appointment. Similarly, the Cabinet properly withheld the evaluations of attorneys employed in the Division of Legal Services on the basis of KRS 61.878(1)(a), (i), and (j). However, the Cabinet's reliance on these exemptions to authorize nondisclosure of Distinguished Service Award documentation was partially misplaced. Although the Cabinet properly withheld supporting documentation relating to unsuccessful nominees, it is obligated to disclose DSA letters of justification and supporting documentation relating to attorneys upon whom the awards were conferred. The Cabinet properly released redacted copies of the P-1s of employees in the Division of Legal Services on the basis of KRS 61.878(1)(a), but improperly withheld information from attorney time sheets on the basis of KRS 61.878(1)(l). Because these time sheets do not disclose substantive legal matters, the Cabinet should provide Ms. Stivers with unredacted copies. Conversely, because the attorney assignment lists contain information of a substantive nature, the Cabinet properly withheld them under authority of KRS 61.878(1)(l). Finally, we find that the Revenue Cabinet violated the procedural requirements of the Open Records Act, set forth at KRS 61.880(1), by failing to afford Ms. Stivers timely access to the nonexempt records identified in her 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
1 It is important to note that in 98-ORD-124, the Cabinet did not invoke KRS 61.872(6) or raise the argument that the request, as framed, was unreasonably burdensome. Accordingly, we did not address this issue.
2 As noted, the Cabinet did, of course, furnish Ms. Stivers with copies of her own application for the position of attorney-manager, her own evaluations, her own request for a DSA, and other DSA documents relating to her as required by KRS 61.878(3).
3 Although the cited opinions dealt with applications for employment, as opposed to applications for promotion, we believe that many of the same privacy interests are implicated when an individual unsuccessfully applies for a promotion.
4 Whether responsive records have been released to date remains an issue in contention. Ms. Stivers maintains that they have not, the Cabinet maintains that they have. We trust that this dispute will be resolved by release and implementation of this decision.