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 violated the Open Records Act in responding to William Jacobs's March 22, 1999, request for "assistance and information on what group of records contain among their contents the UK provisions for organizing or controlling what personnel records are maintained, cared for and kept in the personnel files of the University President and Chancellors. " For the reasons that follow, we conclude that the University's response neither violated, nor subverted the intent of, the Open Records Act.
In his request, Mr. Jacobs asked that the University furnish him with:
a) the single record whose provisions organize or control what personnel records are maintained, cared for and kept in the personnel files(s) associated with . . . [the office of President] and its numbered job position;
b) If (a) does not exist, then the group of records which by their contents organize or control what personnel records are maintained, cared for and kept in the personnel file associated with . . . [the office of Chancellor] and its numbered job position.
"To further clarify the situation," Mr. Jacobs also requested:
c) the record of the University "organizational functions" that shows whether the "office" of the President is considered a "staff" position or a "faculty" position.
d) the record at the University "organizational functions" that shows whether the "office" of "Chancellor" is considered a "staff" position or a "faculty" position.
e) for the President and two Chancellors, . . . the Human Resource System payroll record or screen that shows the "job group code" of each office as either "R" for regular faculty or "T" for regular administrative/professional staff.
In his March 29 response, University records custodian George J. DeBin advised Mr. Jacobs:
In response to the first portion of your request, including a and b above, which are rephrased requests for the same records we have previously provided to you, please refer to the responses contained in my February 17, 1999, November 30, 1998, November 17, 1998, and October 26, 1998 letters to you. There are no other records to provide to you regarding the contents of personnel files for the President, the Chancellors or any other University employee.
In response to c and d above, there are no records that are responsive to this request.
In response to e above, provided herewith are copies of Human Resources computer screens that relate to the positions of the President and Chancellors. Pursuant to KRS 61.878(1)(a) we have redacted social security numbers from these records.
Dissatisfied with the University's responses, Mr. Jacobs initiated this open records appeal.
Mr. Jacobs complains that the University illegally "grouped" its responses to his requests in an attempt "to prevent [him] from being able to point to the applicable University records policy as part of [his] effort to precisely describe sought records from the personnel files of the Chancellor vs. the President." In his view, these actions contravene the intent of KRS 61.876(1), requiring public agencies to provide assistance and information, since he:
utilized even greater authority by seeking that information and assistance under the force of an open records request for the records that would show the information of which (1) single record vs. (2) group of records apply to the Chancellor vs. the President, so that [he] could then "complete" [his] records description by using the University's own language to describe the appropriate Chancellor-related v. President-related record(s).
Moreover, Mr. Jacobs complains, the University purposely misled him by providing the false information that no single record showing "whether the 'office of the President' is a staff vs. faculty position" exists. Mr. Jacobs points to a document he "ferreted out" which, in his opinion, is responsive to this request. He complains that these actions "have the effect of misdirecting the recipient of the information that no record exists to be timely pursued that shows the 'staff' classification of the 'office of the President,' thereby thwarting the requester's ability to determine which records policy to point to in precisely describing sought records in the personnel file of the President."
As he has before, Mr. Jacobs urges the Attorney General to issue a decision that the University has violated KRS 61.870-KRS 61.884 "concerning those records custodial duties that the Official Custodian inextricably must perform in order to comply with the 'timely' response requirements." He notes:
where the Attorney General's narrow role under the Open Records Law is to "decide" whether there has been "violation" (KRS 61.880(2)(a) and where the law provides that only your "decision" (on 'violation") is enforceable in court (KRS 61.880(5)(b)), I thereby can only seek judicial enforcement of your decision if you "decide" that there has been "violation." If instead you only find "subversion" without expressly "deciding" the subversion constitutes "violation," then for purposes of court enforcement of the Attorney General's decision, there is no "decision" on "violation" for which I can seek force-and-effect-of-law enforcement after 30 days.
Without this decision, Mr. Jacobs complains, he has "nothing enforceable" against the agency.
In a supplemental response directed to this office, Mr. DeBin elaborated on the University's position. Denying that his responses were in any way improper or misleading, he explained:
The issue is this: Mr. Jacobs was provided the two regulations at UK relating to personnel files of faculty and staff. The regulations on their face do not indicate whether they are applicable to either the President or Chancellor. Mr. Jacobs then began crafting records requests designed to go beyond the regulations, seeking an interpretation of which record applied to the President and which to the Chancellor. Mr. Jacobs's complaint is that the Official Custodian failed to interpret or explain documents provided to him.
His November 20, 1998 letter best sets out what Mr. Jacobs seemed to be seeking:
In my response, I attempted to explain to Mr. Jacobs as follows:
In the next round of correspondence, I responded:
Mr. Jacobs's requests go beyond a request for records; they seek information about the application of these University regulations, or information to interpret the regulation. His repeated requests for records were not designed to obtain access (he already had the records), but was in essence a question directed to the official Custodian seeking which of the regulations applied to the President.
Relying on various opinions of this office, Mr. DeBin thus maintained that the University's responses were proper insofar as Mr. Jacobs's "records requests" were in reality requests for information about documents.
In response to Mr. Jacobs's assertion that the University provided him with intentionally misleading information, Mr. DeBin observed:
Mr. Jacobs's final complaint is that the "Official Custodian's provision to me of incorrect information that a record does not exist that shows whether the "office of the President" is under UK organization a "staff" office or a "faculty office", when in fact a UK record does exist that shows exactly that information." Mr. Jacobs had previously requested two records: "the record of the University 'organizational functions' that shows whether the 'office' of the (President and Chancellor) is considered a 'staff' position or a 'faculty' position." I responded that there are no records responsive to the request. As his next request, Mr. Jacobs requested: "For the President and two Chancellors, I request the Human Resource System as either 'R' for regular faculty or 'T' for regular administrative/professional staff. " Those screens were provided.
Mr. Jacobs then weaves an argument that because the computer code T exists on the payroll computer screens for the positions of President and Chancellor, I should have answered differently to his earlier requests. Another University of Kentucky booklet relating to the operation of the payroll system defines the various codes.
Despite his argument, there still exists no single record that shows whether the President is "staff" or "faculty. " In answering that there were no responsive records, I reviewed the University's Governing and Administrative regulations, conferred with Dr. Fleming, the University administrator who is in charge of our regulations, and determined that there was no definitive responsive record in the University Regulations. I did not go to the payroll computer inasmuch as that system is set up to pay employees, not as a reference source or as a place where one would find definitions of which "employees" are faculty and which are staff. I believe that I made the required "good faith effort to conduct a search using methods which could reasonably be expected to produce the records requested." The Attorney General should thus "conclude that [UK] adequately searched for the record under the standard articulated in 95-ORD-96." 97-ORD-31.
I do not believe that I gave Mr. Jacobs "incorrect information." The fact remains, there is still no Governing or Administrative Regulation which specifies whether the President or a Chancellor is solely faculty and solely staff, and whether faculty rules and staff rules apply to his or her personnel file. The University personnel I consulted cannot recall a President or a Chancellor of the University who did not hold dual staff and faculty rank. Mr. Jacobs was clearly told by me and he in turn acknowledged that: "AR II-1.0-1.11G vs. Human Resources Policy 6.0 are respectively responsive to [his] request for the respective President, Chancellors and Vice Presidents to the extent that any particular President, Chancellor or Vice President is or is not occupying a 'staff' position, or to the extent that any particular President, Chancellor or Vice President is or is not occupying a 'faculty' position."
In closing, Mr. DeBin expressed the view that the Open Records Act was not intended to be used as a forum in which a requester "quizzes" a public agency.
We begin by quoting the language of the statute which Mr. Jacobs believes was violated by the University in improperly "grouping" its responses to his requests, and in misleading him into believing that no single responsive record exists relative to his requests. KRS 61.876(1) provides, in part:
Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection. . . .
In construing this provision, the Attorney General has recognized that "the rules and regulations contemplated by KRS 61.876 are a 'how to' for persons who wish to submit an open records request" 94-ORD-12, p. 6. KRS 61.876(1) is aimed at protecting the public by requiring a public agency to educate individuals "on its particular policies and practices relative to open records." Id. The statute is also aimed at protecting the public agency from excessive disruption of its essential functions, and its records from damage and disorganization.
KRS 61.876(1) "establish[es] a minimum standard for agency compliance." 95-ORD-49, p. 4. An agency:
complies with this provision if it adopts rules and regulations limited to the items set forth in KRS 61.876(1)(a) through (d), or if it adopts more comprehensive rules and regulations supplementing the list of items.
So long as those rules and regulations conform to the provisions of the Open Records Act, and do not fall below the minimum standard set forth in KRS 61.876(1), the agency fully complies with the law.
The narrow focus in this appeal is whether the University satisfied its obligation "to provide assistance and information upon request," or sought to mislead Mr. Jacobs by grouping responses to his requests and furnishing him with false information. In our view, the evidence does not support Mr. Jacobs's assertion that he was purposely misled in violation of KRS 61.876(1).
From 1976, when the Open Records Law was enacted, to the present, the Attorney General has recognized:
Open Records provisions are intended to provide for inspection of reasonably described records held by public agencies. Open Records provisions do not provide for, and agency workers are not required to provide under them, instruction in understanding the meaning or impact of information shown upon records produced.
OAG 89-81, p. 5, citing OAG 76-375 (emphasis added). Mr. Jacobs reads the requirement that the agency "adopt rules and regulations . . . to provide assistance and information" to include a duty to instruct the requester on the meaning of the records produced. We reject this position. OAG 89-8 (holding "The Act does not require a public agency to provide information beyond that which is made available from permitting access to the public documents"); OAG 87-84 (holding, "The public has a right to inspect public documents and to obtain whatever information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information"); OAG 90-19 (holding that Open Records provisions "are not intended to provide requester with particular 'information,' nor to require public agencies to compile information to conform to the parameters of a given request"); compare 93-ORD-46 (holding that production of records in a format inaccessible to the requester constitutes a subversion of the Open Records Act) .
Mr. Jacobs's frustration arises from his belief that the University is intentionally impeding his access to a particular document that is responsive to his request by erecting a smokescreen of improperly grouped responses and issuing false and misleading statements. Our review of all of the materials submitted demonstrates that the University furnished Mr. Jacobs with every existing responsive record in its possession. Although not obliged to do so, the University also explained to Mr. Jacobs that, in its view, no single record contains the information he seeks. It is this question on which the parties cannot agree. Mr. Jacobs believes he had "ferreted out" just such a document. The University responds that he has not, and that the document he identifies is not dispositive.
It is the opinion of this office that the University of Kentucky did not fail to offer reasonable assistance and information to Mr. Jacobs in contravention of KRS 61.876(1). The University's responses to each of the four parts of Mr. Jacobs's March 22 request were not "illegally grouped" so as to thwart access, but were consistent with the requirements of KRS 61.880(1). Nor were its responses designed to intentionally misdirect him in contravention of KRS 61.880(4). The University made its records available for his inspection by providing him with those records which were responsive to his request in a manner consistent with KRS 61.872(1). The University was not required to instruct Mr. Jacobs on the meaning or import of information contained in those records. Nevertheless, the University attempted to do so. And while Mr. Jacobs may not agree with the University's conclusions, we do not believe that the evidence he presents supports a finding that the University violated, or subverted the intent of, the Open Records Act.
In closing, we remind Mr. Jacobs that his failure to obtain a decision from this office that subversion of the Open Records Act constitutes a violation of the Open Records Act does not preclude him from obtaining judicial resolution of these issues. As we noted in footnote 2 of 99-ORD-140:
We know of no reason why Mr. Jacobs cannot proceed directly to circuit court to vindicate his position. The Open Records Act clearly does not require exhaustion of administrative remedies before initiating action in the courts. We remind him, however, that the Attorney General's decision herein will in no way prejudice him in subsequent court proceedings since the circuit court will review these issues de novo. KRS 61.882(3); OAG 92-10, citing OAG 91-35.
99-ORD-140, p. 9. Here, as in our earlier decision, we are reluctant to exceed our statutory grant of authority by reading into the law a remedy not expressly recognized therein.
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.