Request By:
Carl West
Beth Crace
P.O. Box 368
Frankfort, KY 40601Melanie Halliday
Open Records Coordinator
Kentucky State University
Frankfort, KY 40601Harold Greene
General Counsel
Kentucky State University
Frankfort, KY 40601Richard Belding
Public Records Division
Department for Libraries and Archives
300 Coffee Tree Road
P.O. Box 537
Frankfort, KY 40602
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 Kentucky State University violated the Open Records Act in the disposition of State Journal reporter Beth Crace's December 8, 2000 and January 10, 2001, requests for various records in its custody. For the reasons that follow, we find that KSU's response was procedurally and substantively deficient. Further, we find that The State Journal's appeal raises the issues of the adequacy of KSU's search, and of its records management policies, and the latter issue is referred to the Department for Libraries and Archives.
On December 8, Ms. Crace requested access to and copies of "all documents relating to and concerning contracts between Kentucky State University and the Justice Resource Center and/or the Rev. Louis Coleman from Jan. 1, 1995, to the present . . . [including] all correspondence relating to those contracts, vouchers, reimbursements, quarterly reports, specific lists of payments made to the Justice Resource Center and/or the Rev. Louis Coleman, and services rendered, invoices, memos, handwritten notes, e-mails, and any other documents concerning the contract . . . ." On January 10, 2001, Ms. Crace requested access to and copies of "all payments, contracts and invoices to the law firm Wyatt, Tarrant & Combs and attorney Jim Newberry, Johnson, Judy, True and Guarnieri, attorney Thomas F. Clay or any other law firm or attorney representing the Board of Regents or President George Reid from July 1998 until present." In addition, she requested copies of "all payments, invoices or contracts made in connection with the lawsuit Charles Kincaid and Capri Coffer v. Betty Gibson, et al . which concerns the KSU yearbooks [, and] any documentation or letters relating to the employment and/or termination of Douglas Woody Baldwin from June 2000 until present."
On December 13, 2000, KSU Open Records Coordinator Melanie Halliday responded to Ms. Crace's December 8 request, advising her that all records relating to contracts between KSU and the Justice Resource Center and Louis Coleman would be disclosed. Ms. Halliday indicated that the request "will require some additional time to locate and assemble the records, and our University holiday begins December 18, 2000, and extends to January 2, 2001." She stated that KSU would "make every effort to comply with the request by January 5, 2001." Ms. Halliday denied a separate, and apparently unrelated request for records relating to Douglas Baldwin's grievance on the basis of KRS 61.878(1)(a) and KRS 61.878(1)(j), erroneously cited as KRS 61.878(1)(h). KSU was unable to meet the January 5 deadline for release of the records relating to the Justice Resource Center and Louis Coleman, and efforts to contact Ms. Halliday or other KSU representatives between January 5 and January 17 proved unavailing. Nor did Ms. Crace receive a response to her January 10, 2001, request for records relating to payment for legal services by various named law firms and attorneys. This inaction prompted The State Journal to initiate the instant open records appeal.
In a response directed to this office following commencement of the appeal, Ms. Halliday elaborated on KSU's position. She explained:
I received an Open Records request from Ms. Beth Crace on Friday afternoon December 8, 2000. I responded to the request on December 13, 2000. In my response, I indicated that the University would make every effort to comply with the request by January 5, 2001. In that same communication, I also addressed the request for information concerning Mr. Douglas Baldwin, but in the future, I will be more careful to address requests separately. Unfortunately, we were unable to compile the needed information within that time frame suggested. I neglected to re-contact Ms. Crace with this information. My only excuse is that I am new to this assignment, and I did not fully understand the procedure. I am learning, and hopefully, I will not repeat too many mistakes.
Ms. Crace sent a second request to which I responded. In that response, I explained the missed January 5, deadline and set a new projection for January 22, 2001. This was also true of the information concerning Mr. Douglas Baldwin. Those materials were actually presented on January 24, 2001.
Ms. Halliday included a copy of a January 17, 2001, letter addressed to Ms. Crace in which she advised:
Request concerning the Justice Resource Center and/or Rev. Louis Coleman:
Kentucky State University will provide any and all documents in its possession related to any contracts between the University and the Justice Resource Center and/or Rev. Louis Coleman.
Unfortunately, compliance with this request was impeded because key personnel were completely preoccupied with the completion of a required financial review. This information should be available by Monday, January 22, 2001.
Request for invoices, payments, and contracts:
The University will provide any and all payments, contracts and invoices to the law firm of Wyatt, Tarrant & Combs and attorney Jim Newberry, Johnson, Judy, True and Guarnieri, attorney
Thomas E. Clay or any other law firm or attorney representing the Board of Regents or President G.W. Reid in his official capacity as President of the University, from July 1998 until the present. The University will also provide copies of any and all payments, invoices, or contracts made in connection with the lawsuit Charles Kincaid and Capri Coffer v. Betty Gibson, et al . which concerns the KSU yearbooks. Barring any unanticipated problems, this information should be available by January 25, 2001.
Request concerning Douglas Baldwin:
Kentucky State University will provide any documents associated with the employment and/or termination of Douglas Baldwin. However, portions of the requested documents, relating to Mr. Baldwin's personal privacy are exempted under KRS 61.878(a) and will be deleted. The release of these portions would constitute an unwarranted invasion of personal privacy. This information should be available by Monday, January 22, 2001.
On February 6, 2001, Ms. Crace contacted this office to express concern over certain unexplained discrepancies in the records released by KSU relative to her request for attorney billing records. Acknowledging receipt of records pertaining to the Justice Resource Center and Louis Coleman, and records pertaining to Douglas Woody Baldwin, Ms. Crace nevertheless questioned the paucity of attorney billing records disclosed. She observed:
We feel the request relating to payments to various legal firms is lacking. On June 15, 2000, a request was sent to KSU requesting copies of payments made to the firm Wyatt, Tarrant & Combs and attorney Jim Newberry from July 1998 until that present date. The January 17, 2001 request also asked for payments to that firm from July 1998 until present, which would have been January 17, 2001. 1
I am enclosing copies of the documents received under the June 15, 2000 request and the January 17, 2001 request related to the Wyatt, Tarrant & Combs and Jim Newberry payments. The June 15, 2000 request produced more documents than were received under the January 17, 2001 request. Also enclosed is the cover letter received with the January 17, 2001 request from Ms. Halliday which makes no note of any documents being withheld under the allowable exceptions related to our request. 2
Also enclosed are copies of the billings from the firm Johnson, Judy, True & Guarnieri received under the January 17, 2001 request. We also feel this request is lacking information as the documents only pertain to billings under the president's office for advice regarding personnel issues and there are none relating to work performed for the Board of Regents. Attorneys William E. Johnson and Guthrie True have attended several meetings of the KSU Board of Regents and met with the board in closed session to discuss pending litigation. There are no billings for those services. Specifically, Johnson and/or True met with the board at the Nov. 3, 2000, Dec. 11, 2000, July 29, 2000 and April 29, 2000, just to name a few dates.
Several lawsuits have been filed against KSU in the past two years and there was an investigation of a KSU professor by attorney Johnson in 1999. The firm of Johnson, Judy, True & Guarnieri was directed to either recover a copy of a 1999 evaluation of President George Reid's job performance or the more than $ 13,000 paid to Florida consultant Edward Penson who was contracted to do the evaluation. There are no indications for billings or payments related to these activities included in our request for payments.
Pursuant to KRS 61.880(2)(c), this office subsequently requested additional information from KSU to substantiate its position that full disclosure has been made. We asked that KSU:
respond to Ms. Crace's concerns about the paucity of billing records for legal services performed by Wyatt, Tarrant & Combs from July 1998, to January 17, 2001, the omission of any reference to redactions in those records, and the statutory basis therefore. In addition, we ask that you respond to Ms. Crace's questions about the omission of billing records for legal services performed by Johnson, Judy, True & Guarnieri during meetings of the KSU Board of Regents attended by William E. Johnson and/or Guthrie True, and in particular the meetings which occurred on April 29, July 29, November 3, and December 11, 2000. Finally, we ask that you respond to Ms. Crace's concerns about the omission of billing records for Johnson, Judy, True & Guarnieri reflecting defense of lawsuits filed against KSU in the past two years, as well as Mr. Johnson's investigation into a KSU professor in 1999.
Ms. Halliday responded:
[T]o the best of my knowledge, the University complied with Ms. Grace's request. Ms. Crace requested, "any and all payments, contracts and invoices to the law firm Wyatt, Tarrant & Combs and attorney Jim Newberry, Johnson, Judy, True and Guarnieri, attorney Thomas E. Clay or any other law firm or attorney representing the Board of Regents or President George Reid from July 1998 until present." I forwarded the request to Mr. William Pennell, Chief Financial Officer. Mr. Pennell assured me that the information supplied represents all of the legal records we have which concern the President and Board of Regents. When I received your inquiry, I contacted Mr. Pennell again regarding the specific dates Ms. Crace provided in her letter to your office. Mr. Pennell further assured me that there are no records of payments to any law firm for attendance at board meetings listed by Ms. Crace as April 29, July 29, November 3, and December 11, 2000.
I cannot explain why more information was supplied in the first request made by The State Journal in June 2000 and the one made on January 10, 2001. However, several logical explanations present themselves. For example, since June 2000, the University has undergone significant reorganization, and the individuals collecting the information at that time may have interpreted the request in a broader sense. Mr. Pennell informed me that he instructed his staff to pull only those payment records which directly involved the President or the Board of Regents. Or perhaps, the request Ms. Crace sent in June was worded slightly differently and was, therefore, filled in a different manner. None of these examples involve malicious intent on the part of the University as seems to be implied by Ms. Crace's complaint.
To my knowledge, the only information redacted from any of the materials we sent Ms. Crace was done so under KRS 61.878(a), (l), or (h) to protect personal privacy or attorney client privilege. If I failed to note this in my cover letter to Ms. Crace, I apologize. I will be more careful in the future.
Having reviewed the record on appeal, we conclude that 01-ORD-38 is dispositive of the issue of compliance with KRS 61.872(5), and the requirement of timely access which we analyzed at pages 6 through 8. A copy of that decision is attached hereto and incorporated by reference. For purposes of absolute clarity, we remind KSU that "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain," and that "[a]bsent an unforeseen emergency, that commitment must not yield to the press of other business." 01-ORD-38, p. 8. Discussion of the remaining issues which this appeal raises follows.
KRS 61.880(1)
Kentucky State University violated KRS 61.880(1) by failing to identify the exceptions authorizing redaction of portions of the attorney billing records and explaining how the exceptions apply to the information withheld. KRS 61.880(1) provides in relevant part:
An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In construing this provision, 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.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). In its response, KSU recited the language of Ms. Crace's requests, but furnished little or no explanation relative to the entries withheld.
In OAG 92-14, the Attorney General held that records of payments made to attorneys by a public agency, and bills and statements submitted to the agency by its attorneys, should be made available for inspection. Relying on OAG 82169 and OAG 85-91, we also held that records which reflect the general nature of legal services rendered are not exempt. Only those records, or portions of records, which disclose substantive matters protected by the attorney-client privilege, and are exempt under KRS 61.878(1)(l), can properly be withheld. KSU was therefore obligated, pursuant to KRS 61.878(4) , to separate the exempt material from the nonexempt material, and release the latter for inspection.
In an attempt to provide additional guidance to public agencies relative to a determination of what may properly be withheld under KRS 61.878(1)(l) and the attorney-client privilege found at KRE 503, this office subsequently observed:
We believe the distinction between confidential and nonconfidential matters drawn in In the Matter of Witnesses before the Special March 1980 Grand Jury, 729 F.2d 489 (7th Cir. 1984) is instructive. Although the court recognized that information regarding fees is not generally protected by the attorney-client privilege, it also recognized that such records might contain information protected by the privilege. The court noted that billing sheets or time tickets "which indicate the nature of documents prepared, issues researched or matters discussed could reveal the substance of confidential discussions between attorney and client." Id. at p. 495. We believe that [an agency] need only permit inspection of records which describe, in general terms, the nature of the services rendered as, for example, "research," "witness interviews," "discussion with client." It may, of course, exercise its discretion in redacting any portion of its records which disclose substantive matters and litigation strategy. This resolution of the issue of the applicability of the attorney-client privilege to the requested records subserves both the agency's interest in protecting privileged information and the public's interest in monitoring the city's activities to insure that it is properly executing its statutory function and pursuing the public good. Kentucky Board of Examiners of Psychologists v. The Courier Journal and Louisville Times Co., Ky. 826 S.W.2d 324, 327 (1992).
OAG 92-92, p. 6.
KSU liberally exercised its prerogative to redact information from its attorney billing records without reference to the exception authorizing redaction or any explanation. Because the record is devoid of "particular and detailed information," we are deprived of the opportunity to assess the propriety of its partial denial of Ms. Crace's request. KRS 61.878(1)(l), operating in tandem with KRE 503, may authorize partial nondisclosure of the billing records, but it is incumbent on KSU to describe, in at least general terms, the nature of the information redacted and the statutory basis therefore. We know of no authority for its eleventh hour defense of the partial denial (redactions) of the billing records on the basis of KRS 61.878(1)(a), the personal privacy exception, unless the redacted information consisted of social security numbers or federal identification numbers. We therefore conclude that KSU's response to Ms. Crace's January 10 request was procedurally and substantively deficient.
Adequacy of KSU's search
The Attorney General is not equipped, as a rule, to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 4. Nevertheless, in the appeal before us, the paucity of the records produced, coupled with KSU's inability or failure to offer a credible explanation for this paucity, compels us to examine the adequacy of its search and the effectiveness of its records management policies.
It is well established that a public agency cannot afford a requester access to a record which does not exist. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17; 97-ORD-103. In general, it is not our duty to investigate in order to locate documents which the requesting party maintains exist, but which the agency states do not exist. However, in 1994 the Open Records Act was amended. The Act now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirement of [KRS 171.410 to 171.740, dealing with the management of public records, and KRS 61.940 to 61.957, dealing with the coordination of strategic planning for computerized information systems]" KRS 61.8715. The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id .
Since these amendments took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based on the nonexistence of the requested records. In order to satisfy its statutory burden of proof, an agency must, at a minimum, document what efforts were made to locate the requested records, and offer some explanation for the nonexistence of the records. See, for example, 94-ORD-140 (records of investigation not in sheriff's custody because sheriff did not conduct investigation); 97-ORD-17 (evaluations not in university's custody because written evaluations were not required by university's regulations).
Ms. Halliday states that she twice contacted William Pennell, Chief
Financial Officer at KSU, in an attempt to locate responsive records. Whether this methodology constituted an adequate search turns on the standard established in 95-ORD-96. At page 7 of that decision, this office observed:
[T]he Open Records Act does not require an agency to conduct "an exhaustive exhumation of records," Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D. N.Y. 1983). It is, however, incumbent on an agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, supra at 775. Thus, the agency must expend reasonable efforts to identify and locate the requested records. And, if the documents do exist, and the public agency cannot locate them, the agency's "good faith [sh]ould not be impugned unless there was some reason to believe that the supposed documents could be located without an unreasonably burdensome search." Goland v. Central Intelligence Agency, 607 F.2d 339, 353 (D.C. Cir. 1979). In assessing the adequacy of an agency search, we "need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).
95-ORD-96, p. 7. Clearly, Ms. Halliday directed her inquiry to the first, and most obvious source of billing records, but we believe that it was not unreasonably burdensome for her search to extend beyond Mr. Pennell's office to all organizational units of the University that would reasonably be expected to produce additional records pertaining to professional services rendered by Wyatt, Tarrant & Combs and Johnson, Judy, True & Guarnieri, and to ascertain why no billing records exist for services rendered on dates certain, and in relation to defense of specific lawsuits filed in the past two years and the investigation of a KSU professor. Additionally, we find the explanation offered for the discrepancies between previously disclosed billing records for Wyatt, Tarrant & Combs and billing records disclosed in response to Ms. Crace's more recent request unconvincing. Because KSU fails to document an adequate search, and is unable to offer a plausible explanation for the nonexistence or nonproduction of these records, we are obliged to refer this matter to the Department for Libraries and Archives for additional inquiry as that agency deems warranted.
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 proceedings.
Footnotes
Footnotes
1 Ms. Crace provides no explanation for the duplicative nature of her second request.
2 Records produced in response to Ms. Crace's June 15, 2000, request can generally be described as follows:
. Unredacted billing records pertaining to services rendered by Wyatt, Tarrant & Combs/James Newberry, Jr. through July 31, 1999, in the amount of $ 991.77 generated by Wyatt, Tarrant & Combs;
. Unredacted purchase requisition for professional services rendered by Wyatt, Tarrant & Combs through July 31, 1999, in the amount of $ 991.77 generated by KSU;
. Unredacted billing records pertaining to services rendered by Wyatt, Tarrant & Combs/James Newberry, Jr. through May 31, 1999, in the amount of $ 983.00 generated by Wyatt, Tarrant & Combs;
. August 16, 1999, letter from James H. Newberry, Jr. to Carson Smith concerning error in calculation for associate's time in invoice for services rendered through August 16, 1999;
. Copy of September 3, 1999, check to Wyatt, Tarrant & Combs in the amount of $ 983.00;
. Unredacted purchase requisition for professional services rendered by Wyatt, Tarrant & Combs through May 31, 1999, in the amount of $ 983.00 generated by KSU;
. Copy of September 15, 1999, check to Wyatt, Tarrant & Combs in the amount of $ 991.77;
Records produced in response to Ms. Crace's January 10 request can generally be described as follows:
. Copy of September 15, 1999, check to Wyatt, Tarrant & Combs in the amount of $ 991.77;
. Purchase requisition for same;
. Redacted billing records pertaining to professional services rendered by Wyatt, Tarrant & Combs/James Newberry, Jr. through July 31, 1999 - redactions appear on itemized list of services rendered;
. Copy of June 2, 1999, check to Johnson, Judy, True & Guarnieri in the amount of $ 612.00;
. Purchase requisition for same with redactions under "Description" and "Total";
. April 30, 1999, itemized invoice prepared by Johnson, Judy, True & Guarnieri in the amount of $ 112.50 for "advice regarding personnel decision" with redactions in itemization of services;
. Copy of July 12, 2000, check to Johnson, Judy, True & Guarnieri in the amount of $ 3,089.66;
. Purchase requisition dated May 23, 2000, for professional services rendered by Johnson, Judy, True & Guarnieri;
. Redacted itemized billing record submitted by Johnson, Judy, True & Guarnieri for "advice regarding personnel decision" dated April 30, 2000, in the amount of $ 762.50 with redactions in itemized list of services rendered;
. Copy of June 30, 1999, check to Johnson, Judy, True & Guarnieri in the amount of $ 996.30;
. Purchase requisition for same with redactions under "Description" and "Total";
. Redacted itemized billing record for "advice regarding personnel decision" in the amount of $ 159.50 dated May 31, 1999 with redactions in itemization of services;
. Copy of August 8, 1999, check to Johnson, Judy, True & Guarnieri in the amount of $ 824.70;
. Purchase requisition for same;
. Redacted itemized billing record submitted by Johnson, Judy, True & Guarnieri for "advice regarding personnel decisions" dated June 30, 1999, in the amount of $ 407.00 with redactions in itemized list of services rendered.