Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lexington-Fayette Urban County Government violated the Open Records Act in denying portions of Jenia Minor's request for information and records relating to LFUCG's pay equity study. For the reasons that follow, we find that LFUCG's response to Ms. Minor's request was partially violative of the Act.
By letter dated February 3, 2004, Ms. Minor requested that LFUCG produce "in spreadsheet form on a disk or CD" the following information about all permanent and probationary LFUCG employees, including [Ms. Minor] that are in the Administrative Specialist 110 pay grade":
. Name
. Employee Number
. Date of Hire
. Date of Promotion (if applicable)
. Score for Experience and Education
. Base pay (bi-weekly) before equity
. Base pay (bi-weekly) after equity[.]
Ms. Minor asked that LFUCG advise her to which of these employees she was compared for the pay equity study, and that LUFCG provide her with copies of "any letters, lists, or emails pertaining to the pay equity study of the individuals, including [Ms. Minor] that are in the Administrative Specialist 110 pay grade." She also requested copies of the Standard Operating Procedures and Guidelines used for the pay equity study, including written criteria that determine A Quality Work, B Quality Work, and C Quality Work, guidelines showing the years of experience assigned to an associate's degree, bachelor's degree, and master's degree, and records "describing the ranking system for persons who have double majors . . . or have more than one degree."
On February 11, 2004, Walter F. Skiba, Jr., Director of the LFUCG Division of Human Resources, notified Ms. Minor that "[t]he standard operating procedures . . . and applicable ordinance(s) are available," but indicated that the requested information "is not available in the format [she] requested." Mr. Skiba stated that such a report could be customized in seven to ten days, and reminded Ms. Minor that "the cost of development and printing" would be assessed to her. Ms. Minor retrieved the SOPs and ordinances from Mr. Skiba's office on February 21, but received no follow-up communication concerning the remainder of her request.
Two months later, Ms Minor contacted LFUCG's Department of Law by email to ascertain the status of her request. LFUCG Corporate Counsel Michael R. Sanner immediately responded that he would "look into this," and on April 22 notified Ms. Minor that she would receive a written update on her request from Human Resources by April 26. On the same date, Renee' Chappell, Division of Human Resources, emailed Ms. Minor that she had been made aware of Ms. Minor's request but did not know what information Ms. Minor was seeking. Mr. Skiba later confirmed that her original request had been misplaced and asked that she resubmit a copy. Ms. Minor forwarded the Division of Human Resources a copy of her February 3 request on April 22.
Having again received no follow-up communication from LFUCG, Ms. Minor emailed Ms. Chappell on May 6 and Mr. Sanner on May 7 in another attempt to ascertain the status of her request. Mr. Sanner responded that the records had been compiled and a letter prepared by Ms. Chappell on April 26, but "[i]t may have been lost." In the same email, he asked Ms. Chappell to "send [Ms. Minor] another copy of the letter on her open records request." Five days later, Ms. Minor emailed Mr. Skiba, Ms. Chappell, and Mr. Sanner, advising them that she had "not received a letter from HR specifying [the status of her request] or costs . . . ." She indicates that Ms. Chappell told her in a telephone conversation that same day that the records had been gathered but could not be released until Mr. Skiba gave his approval. Ms. Minor also indicated that Ms. Chappell acknowledged that "no status letter had been sent to [her]."
On May 13, 2004, Ms. Minor received a memorandum dated April 27, 2004, from Mr. Skiba. He stated:
The spreadsheet that you have requested is currently available for your inspection with the exception of employee numbers which are exempt pursuant to KRS 61.878(1)(a). 1 A final list pertaining to the pay equity study for Administrative Specialists is available for your inspection with the exception of employee numbers. Letter, emails and preliminary lists are exempt pursuant to KRS 61.878(1)(i)(j) as preliminary. The standard operating procedure for the pay equity process is available for your inspection. The criteria that determines the quality of work is exempt pursuant to KRS 61.878(1)(g) as examination data to be used again. College degree credits are addressed in the SOP.
Shortly thereafter, Ms. Minor initiated this appeal, challenging LFUCG's denial of her request for "letters, emails, lists, and written . . . grading criteria for the quality of work. "
In supplemental correspondence directed to this office following commencement of Ms. Minor's appeal, Mr. Sanner amplified on LFUCG's position. Noting that Ms. Minor inspected some documents on February 21, he acknowledged that she did not receive her final response until May 13, 2004. Mr. Sanner explained that each division of LFUCG is responsible for responding to that division's requests, but that during his absence "there was some confusion as to the process and the final response to Ms. Minor was delayed." Because Ms. Minor "did receive a response," he maintained that the only issue on appeal is the propriety of LFUCG's reliance on KRS 61.878(1)(j) and (g) to support partial nondisclosure of the records.
Turning to that issue, Mr. Sanner reiterated that "[t]he letters, electronic mail messages, and preliminary lists, which were subject to revision and modification . . . fell squarely in the preliminary exemptions, " adding that disclosure "would cast a chilling effect on the ability of the Division of Human Resources to function." With reference to the criteria determining quality of work, and LFUCG's reliance on KRS 61.88(1)(g), Mr. Sanner advised:
The purpose of this exemption is to protect the Government from immediately having to revise its testing procedures if the tests or scoring keys are made public and to protect the Division of Human Resource's procedure from manipulation by employees or prospective employees who have access to the criteria prior to filling out their paperwork.
When a prospective employee applies for a new position, or a current employee applies for a different position within the Urban County Government, part of the paperwork filled out by that employee lists their training and experience regarding previous employment. Based on these answers, the employee's experience is assigned points relevant to the position sought as "A" quality, "B" quality or "C" quality. These points are added up to determine where the prospective employee or employee falls into the salary range.
Release of the criteria determining the point system for quality work would provide employees with information used to classify their position and is analogous to releasing test answers before the test is given. The Division of Human Resources' classification system would be compromised if employees knew what factors were considered, including those receiving the highest point values, inasmuch as they could then describe their previous positions on the paperwork in such a way as to ensure the highest point value in all categories.
In support, he cited 01-ORD-20, affirming LFUCG's denial of a request for a point factor evaluation system relating to job classification and pay, and OAG 92-80, affirming the Jefferson County Division of Human Resources' denial of a request for rating and scoring procedures used in the hiring process.
Mr. Sanner concluded:
The LFUCG Division of Human Resources uses its written criteria for "A" quality, "B" quality and "C" quality work for every new employee and every current employee who moves to a new position to determine the classification and salary within the salary range. As such, these written criteria are used over and over again. To make public the written criteria would cause the Division of Human Resources to have to immediately revise their criteria and procedure for determining salaries within the salary ranges. The LFUCG believes that this immediate revision falls under KRS 61.872(6) as an undue burden to the Government. The above immediate revision and undue burden argument was similarly addressed by the Attorney General in 01-ORD-020 in denying access to the Mercer point factor system.
In response to this office's KRS 61.880(2)(c) request, LFUCG furnished us with copies of the records in dispute, acknowledging, at this juncture, that "after a reasonable search was conducted, [no letters or e-mails] were found responsive to her request." Having reviewed those records, we find that LFUCG's disposition of Ms. Minor's request was only partially consistent with the requirements of the Open Records Act.
To begin, we cannot agree that Ms. Minor's ultimate receipt of a "final response" from LFUCG, some three and one-half months after that request was submitted, entirely abates the agency's obvious procedural error. While we are confident that LFUCG is fully aware of its legal obligations under KRS 61.880(1), and will not unnecessarily lengthen this decision with a review of these obligations, it is apparent that LFUCG violated the cited provision by failing to afford Ms. Minor timely access to the nondisputed records identified in her request and to articulate, in writing, and within three business days, the statutory basis for denying her access to the remaining records she requested.
Moreover, it is the opinion of this office that LFUCG erred in failing to promptly notify Ms. Minor that its search for responsive letters or emails yielded no results. The Attorney General has consistently recognized that an agency's inability to produce records due to their nonexistence is tantamount to a denial, and that it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9; 01-ORD-59, p. 5; 01-ORD-220, p. 6; 02-ORD-144, p. 3. While it is obvious that an agency cannot produce that which it does not have or which does not exist, a written response that does not clearly so state is deficient. OAG 86-38; OAG 91-101; 96-ORD-164; 97-ORD-116. Assuming LFUCG conducted an unproductive search upon receipt of Ms. Minor's request, we question why the agency invoked KRS 61.878(1)(j) to deny access to nonexistent records. If it did not conduct a search until pressed by this office for copies of the disputed records, per KRS 61.880(2)(c), its efforts in this regard were deficient. Letters and emails that may have existed on February 3, when her request was submitted, might well have been destroyed or deleted in the succeeding months.
In KRS 61.8715, the General Assembly has recognized "an essential relationship between the intent of [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records, . . . and 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 these statutes." It is clearly understood that a public record which is the subject of a pending open records request, or a dispute arising therefrom, cannot be destroyed. See, e.g., Guidelines for Managing Email in Kentucky Government (June 17, 2003) at page 7 and 03-ORD-005 (enclosed) . While there is no evidence in the record before us that LFUCG willfully concealed or destroyed records responsive to Ms. Minor's request, we urge the agency to implement measures aimed at insuring accountability and access through proper records management.
We affirm LFUCG's denial of Ms. Minor's request for the draft pay equity list for administrative specialist with the exception of that entry which pertains to her. In 00-ORD-195, (enclosed) this office determined that Eastern Kentucky University properly relied on KRS 61.878(1)(i) in denying a request for a draft report containing salary and job evaluation data collected for the purpose of developing a new job classification system at EKU. At page 7 of that decision, we observed:
[T]he documentation presented to date demonstrates that the collection of data is still in progress and undergoing revision, and that [the agency] has not yet reached the stage at which recommendations will be made, opinions expressed, and policies formulated or recommended. Accordingly, although we are not persuaded that the materials qualify for exclusion under authority of KRS 61.878(1)(j), we find that the materials can properly be characterized as a preliminary draft, and may therefore be withheld pursuant to KRS 61.878(1)(i).
It is apparent that the materials do not consist of "correspondence with private individuals" inasmuch as this part of the exception "is generally reserved for that narrow category of public records that reflects letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality." 00-ORD-168, p. 2. Clearly, the materials do not fall within the parameters of this part of the exception. Nor do we believe the materials can be characterized as "notes." They were not "created as an aid to memory or as the basis for a fuller statement, as are, for example, written or shorthand notes taken at a meeting." 97-ORD-183, p. 4 citing OAG 79-333; OAG 88-32; 93-ORD-67, p. 9 (KRS 61.878(1)(i) is "intended to protect random notations made by individuals present at a meeting").
Instead, we find that the materials submitted by Buck Consultants to EKU to date constitute "a tentative version, sketch, or outline of a formal and final written product such as the draft reports dealt Instead, we find that the materials submitted to date constitute "a tentative version, sketch, or outline of a formal and final written product such as the draft reports dealt with in OAG 89-34, 93-ORD-125, and 94-ORD-38." 97-ORD-183, p. 4. The data contained in the materials was submitted for review and comment. Upon inspection by EKU officials, errors were found and omissions noted that have necessitated revision . . . . Such incomplete and inaccurate data obviously could not have been the basis for final agency action . . . .
Because the draft pay equity report consists of virtually identical information, also in a preliminary form, we find that 00-ORD-195 is dispositive of this portion of Ms. Minor's appeal with the exception of the single entry relating to her. As a public agency employee, Ms. Minor is entitled to a copy of "any record including preliminary or other supporting documentation that relates to [her]" pursuant to KRS 61.878(3). 2 If it has not already done so, LFUCG should furnish Ms. Minor with the entry that pertains to her from the otherwise exempted record.
With reference to the remaining disputed record, we find that LFUCG properly relied on KRS 61.878(1)(g) in denying Ms. Minor's request. That exemption authorizes nondisclosure of:
Test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination before the exam is given or if it is to be given again[.]
In construing this provision, the Attorney General has twice held that public agencies may properly withhold records containing rating and scoring procedures for hiring and reclassification. OAG 92-80; 01-ORD-20 (enclosed) . In OAG 92-80, we reasoned that the prohibition on release of the rating scale was "prompted by a concern that candidates who have been afforded access to [it] will be given an unfair advantage in the application process," characterizing the rating scale as an "inactive examination." We extended the logic of that decision to the point factor system utilized by LFUCG in the development of its compensation system in 01-ORD-20. In addition, we noted that KRS 61.872(6) might also authorize nondisclosure, but left that issue for another day inasmuch as KRS 61.878(1)(g) shielded the point factor system from disclosure.
We find that these decisions are controlling on the issue of access to the training and experience evaluation point system at issue in this appeal. Although the point system at issue in this appeal is less complex than the Mercer job evaluation system at issue in 01-ORD-20, it, too, can properly be characterized as an "inactive examination." Moreover, the rationale underlying KRS 61.878(1)(g) is similarly served by nondisclosure since release of the point system creates the same potential for affording an unfair advantage to individuals who are privy to its contents. Based on the reasoning set forth in OAG 92-80 and 01-ORD-20, we find that LFUCG properly withheld this record.
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.
Jenia Minor101 Bridge AvenueBerea, KY 40403
Wally SkibaLexington-Fayette Urban County GovernmentDivision of Human Resources200 East Main StreetLexington, KY 40507
Michael SannerLexington-Fayette Urban County GovernmentDivision of Human Resources200 East Main StreetLexington, KY 40507
Footnotes
Footnotes
1 Ms. Minor does not contest the nondisclosure of this information.
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2 KRS 61.878(3) provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
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