Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The first question presented in this appeal is whether Eastern Kentucky University subverted the intent of the Open Records Act, short of denial of inspection, in the disposition of Davy Jones' June 20, 2002 open records request for:
1. A record (or combination of records) that when retrieved by [the office of the EKU President] . . . shows the identity and contact information of the person serving as Presiding Officer during May 12, 2000-May 11, 2001 of those bodies appointed, established, created and/or controlled by [the EKU President], that are those bodies . . . described above. 1
2. The current schedule of regular meetings of each of those bodies appointed, established, created and/or controlled by [the EKU President], that are those bodies . . . described above.
3. The minutes of the last meeting that was held during the interval May 12, 2000-May 11, 2001, of each of those bodies appointed, established, created and/or controlled by [the EKU President], that are those bodies . . . described above.
The second question presented in this appeal is whether the University violated the Act in issuing a blanket denial of that portion of Mr. Jones' request relating to minutes of committee meetings at which discussions occur, or action was taken, on matters implicating personal privacy (KRS 61.878(1)(a)) or containing preliminary recommendations (KRS 61.878(1)(j)). 2 For the reasons that follow, we find that the University's original response was deficient, but that it has since adequately documented the difficulties associated with locating and retrieving records that are responsive to Mr. Jones' specifically framed, but broad in scope, open records request. Further, we find that, given the breadth of this request, the University has afforded Mr. Jones' timely access to responsive records it has thus far succeeded in locating and provided a reasonable timetable for affording him access to the remaining responsive records. However, without reaching the question of whether the committees identified in the University's July 16 and July 25 partial denials of Mr. Jones' request for meeting minutes are public agencies for open meetings purposes, we find that the University did not meet its burden of proof in prospectively denying Mr. Jones' access to minutes of the named committee's meetings, in their entirety, on the basis of KRS 61.878(1)(a), (j), and (k), incorporating the Family Educational Rights and Privacy Act codified at 20 U.S.C. § 1232g.
In a letter dated June 24, 2002, Melany R. Aldridge, Administrative Assistant to University Counsel Kacey Coleman, responded to Mr. Jones' request as follows:
We have received your correspondence dated May 12, 2002, 3 which was not received in our office until late Thursday, June 20, 2002, via telefax and e-mail. Please be advised that Kacey Coleman, University Counsel, is out of the office attending a national conference until July 1st.
The documents you requested will be maintained in various locations throughout the University and are not in the immediate control of this office. Accordingly, while the University makes diligent efforts to respond to requests within the three (3) days provided, this is to provide you with written notice that as a result of the need to retrieve documents from across campus and because of Ms. Coleman's absence from the office, production will be delayed in accordance with KRS 61.872(5).
You should be advised, as we have previously indicated, the committees appointed by the President are not subject to the Open Meetings Act and in general do not hold regularly scheduled meetings and may or may not record minutes of such meetings. However, we will canvas those committees to determine if the information you have requested is available.
Having received no subsequent correspondence from the University, Mr. Jones initiated this appeal in a letter dated July 8, 2002 and received on July 9, 2002. On appeal, he asserts that, as of July 8, he had not received any responsive records, that the reasons for delay offered by the University, namely the absence of University counsel and the fact that responsive records must be retrieved "from across campus, " are "wholly insufficient," and that assuming arguendo that these reasons for delay were sufficient, the University failed to comply with KRS 61.872(5) by giving him notice of the place, time, and earliest date on which the records would be available for inspection.
In a supplemental response directed to this office following commencement of Mr. Jones' appeal, Ms. Coleman elaborated on the University's position. She maintained that the University's response was "timely and appropriate," and that it informed him that the "good faith reason[s] for delay" were:
1. That as the bodies appointed by the President are not subject to the Open Meetings Act, . . . those bodies "generally do not hold regularly scheduled meetings and may or may not record minutes of such meetings;" and
2. That the documents requested, if in existence, would be maintained in offices throughout the campus . . .requiring that they be collected.
Nevertheless, she noted, efforts to canvas these committees began immediately and continue. Acknowledging that the University erred in failing to advise him of the earliest date, time, and place for inspection, Ms. Coleman noted that estimating that date at the time of his initial request was extremely difficult and that it remains difficult. She explained:
Every institution has bodies to whom tasks are appointed to assist in carrying out the business of the institution. Most of these bodies are created by departments and divisions within the institution, not by the initiative of the President. If a presidentially created body exists, which body is not subject to the Open Meetings Act, it becomes incumbent upon my office to contact member(s) of each of that body to determine whether (1) there is a regular meeting schedule, (2) whether minutes are kept, and (3) if minutes are kept to obtain copies. As an academic institution many of those appointed to bodies are members of our faculty. . . .
Because many faculty members are away from campus during the summer, she continued, records maintained by these individuals that might be responsive to Mr. Jones' request could not be immediately retrieved. In closing, Ms. Coleman observed:
This office and the University have made all reasonable and diligent effort to respond to Mr. Jones numerous requests, including the request that is the subject of this appeal. With this communication all currently known, existing documentation that exists which is responsive to Mr. Jones' request has been provided. This office has not yet completed its review to determine if any other bodies would be responsive. Given the volume and nature of the request made by Mr. Jones, this office believes it has acted in good faith and in a reasonable time period to respond. This office should be capable of providing Mr. Jones with an update as to the status of our review by July 31, 2002.
Both parties to this appeal submitted additional correspondence to this office the salient points of which are set forth below:
7/20/02
Mr. Jones observes that records reflecting presidential appointments to committees, including designations as "presiding officer, " should exist in the President's office in the form, for example, of correspondence from the President to his or her appointee notifying him or her of appointment, and that the University has "improperly labored with great effort to avoid effective search to the office of the President." In support of his belief that such documentation should exist, Mr. Jones relies on KRS 171.640, requiring the President to create and preserve documentation of his or her office's organizational functions. Insofar as these records are concerned, he notes, no campus wide search is necessary. "Protraction of provision of otherwise available records of the presiding officers, minutes, etc., until the last missing record is located," Mr. Jones concludes, "is an improper subversion of the intent of the Open Records Law."
7/25/02
The University produces a "campus-at-large" list of committees for academic years 1999-2000 and 2000-2001, but notes that the list reflects all committees and not just committees to which the President makes appointments, does not identify the presiding officer in all cases, and is not current. Ms. Coleman indicates that the University has reviewed current files and made direct inquiries "of those whom we believe can provide the information requested and who may be in possession of the requested documentation. " With reference to certain named committees, 4 she advises that meeting minutes, "even if in existence, will not be produced as exempt from the Open Records Act pursuant to KRS 61.878(1)(a) and (j) . . . ," nor will meeting minutes that are "exempt due to the application of the Family Educational Rights and Privacy Act (FERPA)." Elaborating on the difficulties associated with reviewing meeting minutes, Ms. Coleman again requests "that [the University] be permitted time, in accordance with the statute, to make a good faith effort to gather all documentation that may be responsive. "
7/30/02
Mr. Jones challenges the University's blanket denial of his request as it relates to the named committees, observing that mere recitation of the language of the exemption, without a supporting explanation, is insufficient.
It is this extensive written record we are asked to review.
Having done so, we conclude that although Eastern Kentucky University's original response did not satisfy the requirements of KRS 61.872(5), the University's supplemental responses provided a detailed explanation of the cause of delay in inspection beyond the mandatory three day inspection date, and an estimated disclosure date of July 31, 2002 that was reasonable in light of the broad scope of Mr. Jones' request. However, we do not believe that the University sustained its statutory burden of proof 5 in prospectively denying that portion of Mr. Jones' request that implicated meeting minutes for certain named committees on the basis of KRS 61.878(1)(a), (j), and (k). With regard to remaining records access issues, if any, we remind the parties that this office is not, in general, equipped to resolve a dispute concerning a disparity "between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 9.
In a recent open records decision, the Attorney General observed:
"The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1). [T]he Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
(Emphasis added.) Additionally, we note that in OAG 92-117 this office made abundantly clear that the Act "normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request." OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented." OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 84-300, p. 3; see also 93-ORD-134 and authorities cited therein. Pursuant to KRS 61.872(5), "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." 01-ORD-38, p. 5.
01-ORD-140, pp. 3, 4.
The record on appeal in OAG 92-117, cited above, supported an agency delay of twenty-one days in honoring an open records request. The agency, Department for Social Services, demonstrated that it served one hundred and twenty-three local offices in one hundred and twenty counties across the state, each of which maintained its own records. Requests for records maintained in local offices were nevertheless processed by and through the Department for Social Services, which was obliged, upon receipt of a request, to locate the records in the appropriate county office, retrieve those records, and review them before releasing them for inspection. Given the broad scope of the request ("any and all records in the possession of the [then] Cabinet for Human Resources upon which [requester's client's] name appears or which may concern her"), the ongoing nature of the Department's investigation into the requester's client, and the need to obtain a copy of the records, and review them upon conclusion of the investigation but prior to making disclosure, this office concluded that "twenty-one days [did] not constitute an inordinate delay in the release of public records, " warning that "we [did] not mean to adopt a rule of general application vis-a-vis 'timely access.'" OAG 92-117, p. 5.
Conversely, the record on appeal in 01-ORD-140, cited above, did not support a delay of ten to thirteen days. The requester identified three specific documents which he wished to inspect, and the records custodian acknowledged that he knew "precisely where the documents were located." The records custodian did not maintain that the records contained a mixture of exempt and nonexempt information, necessitating review prior to disclosure for purposes of redaction. Thus, we concluded that the agency did not offer a satisfactory explanation for the ten to thirteen day delay, and that its disposition of the request was inconsistent with the principle that "the value of information is partly a function of time." Fiduccia at 1041; see also 93-ORD-134; 99-ORD-44; 00-ORD-117.
We believe that the facts before us in this appeal are more closely akin to the facts before us in OAG 92-117 than the facts before us in 01-ORD-140. Although Eastern Kentucky University's original response to Mr. Jones' June 20 request failed to satisfy the requirements of KRS 61.872(5), relative to detailed notification to the requester of the cause for delay beyond three business days and the earliest date for inspection, the University subsequently explained, in exacting detail, the problems associated with retrieving most of the records implicated by the request, and designated a date certain, July 31, when the responsive records would be available for inspection. Given the broad parameters of the request and the difficulties in locating and retrieving responsive records, we find that an extension of the deadline for inspection of just under one month was not unreasonable, especially in view of its ongoing production of records within that time period. Certainly, any greater delay would violate the principle of timely access to public records. While we agree with Mr. Jones that an initial search of the President's office and presidential records in storage, would have yielded, at least in part, the records sought, we cannot ignore the fact that considerable efforts have been expended, and are being expended, in order to satisfy Mr. Jones' request in full. Simply put, does Mr. Jones wish to sacrifice accuracy and thoroughness for speed? Given his obvious dedication to detail, we think not. We trust that Eastern Kentucky University will honor its commitment to make full disclosure of all responsive records located by the designated date, notwithstanding its position on the applicability of the Open Meetings Act to the committees whose records Mr. Jones requested under the Open Records Act.
We turn now to the issue of the University's prospective denial of that portion of Mr. Jones' request that implicates committees whose minutes are likely to contain information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy (KRS 61.878(1)(a)), preliminary recommendations (KRS 61.878(1)(i)), and information the disclosure of which is prohibited by federal law or regulation (KRS 61.878(1)(k) incorporating 20 U.S.C. § 1232g into the Act). With regard to the minutes of these committee meetings, the University issued a blanket denial on the basis that "the meetings of these bodies are conducted in closed session." We agree with Mr. Jones that this is not a legally sufficient basis for withholding the minutes of meetings which might also reflect the call to order, the presence of a quorum, the names of the members present, and to which nonexempt records might be appended, such as complaints directed to the Grievance Committee. Such entries in the minutes, and records appended to the minutes, do not automatically qualify for exclusion from public inspection. To the extent that the University has the burden of proof relative to denying access to public records, we find that it did not meet its burden. Pursuant to KRS 61.878(4), minutes of all committee meetings that are responsive to Mr. Jones' request must be reviewed prior to disclosure and the nonexempt portions of those minutes disclosed.
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 The referenced description consists of a two and one-half pages narrative, parsed into subparts A, B, C, and D, each of which are further parsed into as many as nineteen additional subparts. At the risk of oversimplification, the "bodies described above" are identified as "committees, task forces, 'working groups,' councils or other named bodies" appointed by the current EKU President or a prior EKU President "who has or had authority over the next appointment to the given body" that existed and conducted meetings between May 12, 2000 and May 11, 2001.
2 For purposes of absolute clarity, we emphasize that the question before us is not whether these "bodies" constitute public agencies as defined in KRS 61.805(2). For open records purposes, any record, regardless of physical form or characteristics, that is prepared, owned, used, in the possession of or retained by a public agency, as defined in KRS 61.870(1), is a public record that is subject to mandatory disclosure unless otherwise exempt. This would include statutorily required meeting minutes (KRS 61.835) and voluntarily maintained meeting minutes, as well as statutorily required regular meeting schedules (KRS 61.820) and voluntarily established regular meeting schedules.
3 Mr. Jones acknowledges that his request was misdated "May 12, 2002."
4 Sabbatical Leave Committee, University Committee for Promotion and Tenure, and the University Grievance Committee.
5 KRS 61.880(2)(c).