Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented here is whether the Cabinet for Workforce Development violated the Open Records Act in responding to Pamela Sapp's January 24, 2000 open records request. In her request, Ms. Sapp asked for records relating to her being placed on agency directed sick leave in April of 1996 and on suspension on or about September-October of 1996, which were contained in her files. In addition, she requested records within the files of twenty named current or former employees of the Cabinet that related to the above-described subject matter.
By letter dated January 28, 2000, Robert D. Schaad, Office of General Counsel, responded to the request on behalf of the Cabinet, stating:
Your extensive Open Records request dated January 24, 2000 has been received in this office. It has been assigned to a member of the personnel staff to search the Cabinet's files and see if any of the requested material exists.
We will advise you as soon as we learn what, if any, of the requested material is contained in the Cabinet's Files.
In her letter of appeal, dated March 3, 2000, Ms. Sapp acknowledged the timely receipt of Mr. Schaad's response, but stated she had yet to receive any subsequent response from the agency as to the result of the agency's search for the requested records.
By letter dated March 7, 2000, Mr. Schaad provided this office with a response to the issues raised in the appeal. In his response, he advised that Ms. Sapp had filed, pro se , a lawsuit against the Cabinet and other agencies and individuals in Franklin Circuit Court, Case 98-CI-02048, which is still pending, and in which the Cabinet is represented by outside counsel. Addressing Ms. Sapp's records request, he explained, in relevant part:
Ms. Sapp's position was transferred from the Cabinet for Workforce Development to the Kentucky Community and Technical College system in July, 1998. Therefore, her official personnel files are with that agency and with the Personnel Cabinet.
?
Because of the history of Ms. Sapp's extensive correspondence with the Cabinet, and the continuing litigation, there were some residual materials in the possession of the Office of Personnel Services. I obtained these materials from an employee of that office. I also have undertaken the task of examining the Office of General Counsel file regarding Ms. Sapp and her litigation. This file takes up a full legal-sized file drawer. It contains numerous documents, many duplicate in nature, and also contains materials which are covered by attorney-client material and attorney work product privilege. I have now taken five and one-half full work days sorting through documents and placing the ones that are relevant and not privileged into chronological order, and preparing a list thereof to send to Ms. Sapp.
So far I have located and identified more than eighty documents that fit her broad request of January 24, 2000. Many of these are documents generated by Ms. Sapp herself, an extensive process of mailing and telefaxing correspondence, with numerous different attachments, to various employees of the Cabinet as well as other agencies.
Arguably, the Cabinet could decline to respond to her request based upon Kentucky Revised Statutes (KRS) 61.872(3) and KRS 61.872(6), however we have decided in the spirit of the intent of the Open Records law, to expend considerable time and energy in complying with her request.
The Cabinet for Workforce Development respectfully submits that in the circumstances we are not taking an unreasonable amount of time to respond to Ms. Sapp's request.
By letter dated March 9, 2000, Mr. Schaad notified this office that the Cabinet had responded to Ms. Sapp's request as of that date and enclosed a copy of its response. In its response to Ms. Sapp, the Cabinet advised her that the Cabinet had located 102 documents related to her request. The Cabinet described the nature and number of pages of each document. The Cabinet stated that the total number of pages of the documents was 451 and could be mailed to her at a cost of $ 51.80 ($ .10 per page plus $ 6.70 postage). She was informed, that if she wished to order only some of the documents, to indicate which ones and they would be made available at $ .10 per page.
Relying upon KRS 61.878(1), KRS 422A.0503, and CR 26.02, the Cabinet denied access to certain materials which related to the ongoing litigation as being exempt under the attorney-client privilege and attorney work product.
In addition, the Cabinet advised Ms. Sapp that, "in compliance with KRS 61.878(1)(a) and with the Federal Family Educational Rights and Privacy Act, 20 (USC) Section 1232(g), we shall redact the names and social security numbers of students that appear in any of the documents released to you in response to your request."
We are asked to determine if the Cabinet's actions were in accord with the requirements of the Open Records Act. For the reasons that follow, we conclude that, with the exception of a procedural deficiency, the response of the Cabinet was in substantial compliance with the Open Records Act.
KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, 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 .
(Emphasis added.)
Although the Cabinet timely responded to the initial open records request, the response was procedurally deficient to the extent that it failed to inform Ms. Sapp as to the earliest date the requested records would be available for inspection. Telling the requester that she would be advised "as soon as we learn" was not definite enough to meet the requirements of KRS 61.872(5). Failure to give a date, even though it may only be an estimate, does not give the requester enough information to determine whether access to the records will be provided within a reasonable period of time.
We address next the Cabinet's denial of access to certain litigation materials as being exempt under the attorney-client privilege and attorney work product and as authorized by KRS 61.878(1), KRS 422A.0503, and CR 26.02.
In 98-ORD-124, 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 construing the agency's obligations under KRS 61.880(1), the Kentucky Court of Appeals has observed:
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.
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). Amplifying on this view, the Attorney General has stated:
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), cert. denied 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6. In the cited decision, this office suggested, by way of example, that the agency "might characterize one or more of the records withheld as 'correspondence from [the agency's attorney] to the [agency] on questions pertaining to franchise renewal,' and deny access on the basis of KRS 61.878(1)(l) and KRE 503 as privileged lawyer client communication which was not disclosed to third persons." 97-ORD-41, footnote 2, p. 7.
Although the Cabinet may properly withhold those records that meet the requirements of KRS 61.878(1), KRS 422A.0503, and CR 26.02, it cannot withhold every document which relates to a particular matter under KRS 61.878(1)(l) and the attorney/client work product doctrine. The general nature of any records withheld should be characterized in such a way to establish that they qualify for denial in terms of the requirement of the privilege. The agency would be obligated to disclose those records that do not fall squarely within the parameters of the exception. 98-ORD-124.
Finally, we conclude the Cabinet may properly redact the names and social security numbers of students that appeared in documents to be released to Ms. Sapp, under authority of 20 U.S.C. § 1232g and KRS 61.878(1)(a).
This office has recognized that disclosure of the students' names may implicate The Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, popularly known as the Buckley Amendment. That statute regulates access to "education records," meaning records, files, documents, and other materials which contain information that is directly related to a student and which are maintained by the educational agency or institution. The Buckley Amendment precludes the disclosure of personally identifiable student information to third parties in the absence of a parent or eligible student's prior written consent. 93-ORD-103.
Likewise, the courts and this office have long recognized that a public agency may properly withhold an individual's social security number under authority of KRS 61.878(1)(a). Affirming the Kentucky Labor Cabinet's partial denial of a request for records containing social security numbers, in
Zink v. Commonwealth of Kentucky, Department of Workers' Claims, Labor Cabinet, Ky.App., 902 S.W.2d 825, 829 (1994), the Kentucky Court of Appeals declared that "those nine digits today represent no less than the keys to an information kingdom as it relates to any given individual." Conversely, the court noted, no Open Records Act related to public interest is served by disclosure of the individual's social security number. The court therefore concluded that disclosure of social security numbers constituted a clearly unwarranted invasion of personal privacy. The Attorney General has confirmed this view on numerous occasions. See, e.g., 97-ORD-176. Accordingly, we find no error in the Cabinet's decision to redact students' social security numbers from the 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.