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 Morehead State University violated the Open Records Act in its handling of Mbibong Nchami's June 7, 1999, request for information and records relating to Mr. Nchami's employment at Morehead, incidents which were alleged to have occurred during his employment at Morehead, and various University policies and procedures. Mr. Nchami submitted his request to Douglas L. McSwain and Edmund J. Benson, attorneys in the law firm of Sturgill, Turner, Barker & Moloney, who represent Morehead in a number of state and federal lawsuits filed by Mr. Nchami. His request went unanswered, prompting him to initiate this open records appeal. For the reasons that follow, we conclude that although the position adopted by University counsel, relative to submission of open records requests, does not rise to the level of a substantive violation of the Open Records Act, it nevertheless has the effect of frustrating timely access to public records, short of denial of inspection, within the meaning of KRS 61.880(4).
Upon receipt of this office's notification of Mr. Nchami's appeal, Mr. Benson prepared a response in which he urged this office to declare the appeal moot. He explained:
While the undersigned represents Morehead State University concerning several lawsuits filed by the Nchamis currently pending in various state and federal forums, the undersigned is not the official records custodian for the University and does not have custody or control of any of the public records requested in the subject open records request. Therefore, pursuant to KRS 61.872(4), the undersigned notified Mr. Nchami, by letter dated June 28, 1999, of these facts and the identify [sic] of the University official to whom the open records request should be directed. As of the date of this letter/response, Mr. Nchami has not directed his open records request to the proper University official.
KRS 61.872(2) provides that an open records request, "shall be hand delivered, mailed, or sent via facsimile to the public agency. " Clearly, the subject open records request was never properly communicated to the University.
In the referenced June 28 letter, Mr. Benson advised Mr. Nchami that he was not the records custodian for Morehead, indicating that his requests should be directed to Mike Seelig, Special Assistant to the President. Mr. Benson observed:
As your request appears to concern the pending litigation between yourselves and the University, let me remind you that SCR 3.130(4.2) prevents communications by one party concerning the matter in litigation with any person having a managerial responsibility on behalf of the organization, such as Mr. Seelig. I would therefore request you copy us with an [sic] future correspondence concerning any future open records requests and inform us before talking by telephone or otherwise with Mr. Seelig or any other such University official concerning such requests.
In closing, Mr. Benson encouraged Mr. Nchami to direct "any questions or concerns about any of these matters" to Doug McSwain or him.
It is the opinion of this office that University counsel's response did not constitute a violation of the Open Records Act. Nevertheless, in the interest of insuring timely access to public records, we believe that University counsel should have immediately forwarded Mr. Nchami's request to Mr. Seelig for appropriate response, and refrained from referencing the Rules of Professional Conduct.
In an early opinion, the Attorney General commented:
Although there is litigation in the background of the open records request under review, the requester . . . stands in relationship to the agency under the Open Records Law as any other person.
OAG 82-169, p. 2. On the narrower issue of direct communication between an agency's employees, the agency's attorney, and a litigant, relative to the litigant's open records request, this office has concluded that Supreme Court Rule 3.130, Rule 4.2, does not prohibit such communications. 97-ORD-71; 97-ORD-98. That rule provides:
In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
In 97-ORD-71, the Attorney General held that the fact that the requester was an attorney representing a party who was engaged in litigation with the agency that was the subject of his open records request did not relieve the agency of its duty to respond, or require the requester to address his request to the agency's attorney, Rule 4.2 notwithstanding.
In a case even more directly on point, the Attorney General affirmed 97-ORD-71, reasoning:
Although there are no Kentucky cases on point, this position finds support in a New York case, Fusco v City of Albany, 134 Misc. 2d 98, 509 N.Y.S.2d 763 (Sup. 1986). Faced with the same question, and construing a nearly identical rule of professional conduct, the New York Supreme Court held that the contention that the rule "prohibits an attorney for a litigant suing a governmental body from communicating with employees of that governmental body for the purpose of examining public records under the Freedom of Information Law" was erroneous. Id. at 766. The court noted:
Id. Kentucky's Rule of Professional Conduct contains the same key language. In our view, the logic of Fusco v City of Albany can be extended to the present appeal.
97-ORD-98, p. 5, 6. In the latter decision, the requester/ litigant was a non-attorney and not bound by the Rules of Professional Conduct. We concluded that there was no impediment to direct communication between agency employees, the agency's attorney, and the litigant/requester relative to his open records request. See also, 99-ORD-64. With the exception of the restrictions on access to nondiscoverable records imposed on parties to litigation which is provided for at KRS 61.878(1), litigants stand in the same shoes as any other requester under the Open Records Act.
While it is clear that neither Mr. Benson nor Mr. McSwain is custodian of records for Morehead State University, and that neither has custody and control of the records to which Mr. Nchami requests access, we believe that as attorneys under contract with the University they have a duty to immediately forward a misdirected open records request to the custodian of records of the agency by which they are employed. The Attorney General recently rejected an agency's denial of an open records request on the grounds that it was not submitted to its official custodian of records. In 98-ORD-131, we stated that a "public agency is responsible for the correct transmission of an open records request." At page 6 of that decision, we reasoned:
[The applicant's] request was clearly identified as an open records request and addressed to the "Keeper of the Records." There was no mystery as to the nature of the transmission, and it was incumbent on the employee who received it to immediately forward it to the [agency's] custodian of records. It is imperative that public agencies educate their employees on the importance of these laws, and in particular, the need to immediately forward all misdirected open records requests to the agency's records custodian.
See also, 98-OMD-64 (public agency employee who receives misdirected open meetings complaint is responsible for proper transmission of complaint to agency's presiding officer).
Although Mr. Benson and Mr. McSwain are not on staff at Morehead State University, they are employed by the University to represent it in the state and federal litigation initiated by Mr. Nchami. As a result, it is important that they become familiar with the Open Records Act, and the duties and responsibilities of public agencies that arise under the Act. In all likelihood, they will be consulted on the issue of the propriety of release of the records identified in Mr. Nchami's request. Indeed, they have specifically asked Mr. Nchami to "copy [them] with any future correspondence concerning any future open records requests and inform [them] before talking by telephone or otherwise with Mr. Seelig or any other such University official concerning such requests." Based on the authorities cited above, we do not believe that Mr. Nchami can be compelled to do so, though he may wish to do so in the interest of expediting agency response.
If Mr. Seelig has not been furnished with a copy of Mr. Nchami's request, Mr. Benson and Mr. McSwain should immediately forward the request to him, and he should issue a response that is consistent with the requirements of KRS 61.880(1). Should Mr. Seelig deny any portion of Mr. Nchami's request, Mr. Nchami may initiate a new appeal to the Attorney General.
We can not address, in the context of an open records appeal, Mr. Nchami's complaint that Morehead State University has violated his due process rights. The Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17. Nor is the Attorney General inclined, absent citation to clearly contrary legal authority, to reconsider his long-standing position relative to a public agency's duties under the Open Records Act when litigation is in the background. Our review is confined to the issue of whether the University violated the Open Records Act in its handling of Mr. Nchami's request. While we do not find that the University's actions constituted a violation of the Act, it is our opinion that its actions had the effect of frustrating timely access to public records, short of denial of inspection within the meaning of KRS 61.880(4), and that every effort should now be made to insure that a response that is consistent with the requirements of KRS 61.880(1) is promptly issued to Mr. Nchami.
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.