Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the actions of the University of Louisville relative to the requests of Judith F. Bratcher to inspect various personnel and payroll records violated the Kentucky Open Records Act. Although U of L committed a procedural violation in failing to provide Ms. Bratcher with timely access as required by KRS 61.880(1), despite the extenuating circumstances, U of L has now substantially complied with the Open Records Act in responding to Ms. Bratcher's requests. Because U of L has agreed to provide Ms. Bratcher with redacted copies of any existing records which are responsive to her requests upon receipt of the copying fee and postage in accordance with KRS 61.874(1), with the exception of a letter which contains privileged information, any issues relative to those records are now moot. Relying upon KRS 61.878(1)(a), U of L properly redacted identifying information from the records provided. Assuming that U of L satisfies its burden of proof by adequately explaining how the attorney-client privilege applies to the record withheld, as required by KRS 61.880(1) and KRE 503, further action is not required.
On February 11, 2005, Ms. Bratcher submitted her original request to the U of L University Archives and Records Center via electronic mail. Having received no response, Ms. Bratcher contacted the Provost's Office on February 22, 2005, regarding several matters, including the failure of the Archives and Records Center to respond. On the same day, Sherri F. Pawson acknowledged receiving Ms. Bratcher's request on behalf of William J. Morison, U of L Records Custodian, via electronic mail, further indicating that she had "instructed certain offices to identify all responsive records and send them" to Mr. Morison for review. In closing, Ms. Pawson agreed to contact Ms. Bratcher by February 28, 2005, "with an update to hopefully" arrange a time for her to inspect the records. On March 2, 2005, Ms. Bratcher added to the list of documents which she wished "to view and perhaps copy," requesting access to "HR Timesheet Audit Reports for March 2004 thru December 2004" and timesheets for named employees for "April 2004 thru December 2004." Because February 28, 2005, had "come and gone," Ms. Bratcher requested to know "ASAP" when the records would be available for inspection. To date, Ms. Bratcher had "received nothing from anyone regarding this request."
In a letter dated March 14, 2005, Ms. Bratcher initiated this appeal. By way of background, Ms. Bratcher explains that she is "involved with a harassment complaint filed" filed through the Provost's Office on July 26, 2004, and "needed to see these records in order to draft a response to University counsel in a timely fashion. " Upon receiving notification of Ms. Bratcher's appeal from this office, Mr. Morison responded on behalf of U of L in a letter dated March 21, 2005. Apologizing for the delay, Mr. Morison offers the following explanation:
Although at U of L we customarily do, and are happy to, receive open records requests via email, somehow this particular request did not get logged [into] our system before I left the country on February 18. Typically open records requests come directly to me, but when a requester emails us via our web page form it goes to this separate account. No matter, we should have seen it, regardless. This was our fault entirely. We don't know how Ms. Bratcher's email was overlooked.
In Mr. Morison's absence, Ms. Pawson discovered Ms. Bratcher's request in the "KORA account, logged it in, and immediately contacted the appropriate university units to have them send the responsive records" to his office. When responding to Ms. Bratcher's request, Ms. Pawson mistakenly indicated that the records would be available on February 28th rather than March 3rd, the day on which Mr. Morison was scheduled to be back at the office. Around the time that Ms. Bratcher submitted her revised request, "or just a bit later," Ms. Pawson began receiving responsive records from the Human Resources department. Purely by coincidence, "HR at that very moment began to convey responsive documents to [Mr. Morison's] office as electronic texts in Adobe format as attachments to email messages." Although U of L had never "done it this way in the past," Mr. Morison believes the decision by HR to begin utilizing an electronic method of transmission is correct. However, U of L immediately experienced technical problems (the files were too large) "through no fault of anyone," and those issues were not resolved until March 9, 2005.
Having resolved the technical problems, converted the electronic records to hard copies, and reviewed the responsive records, Mr. Morison advises Ms. Bratcher and this office simultaneously that the records are available for inspection at the University Archives, where Ms. Bratcher can select which records she wishes to have copied. In the alternative, Mr. Morison will mail copies of all responsive records to Ms. Bratcher, along with an invoice for $ 64.60 (626 pages @ $ 0.10 per page, plus $ 5.00 shipping & handling), whichever she prefers. Because U of L has agreed to provide Ms. Bratcher with copies of any responsive records, any issues relative to those records are now moot. However, Mr. Morison "withheld one page, a letter from attorney Brent R. Baughman to U of L counsel Angela Koshewa dated January 27, 2005," which is "related to a separate matter and should be protected by the attorney client privilege." Further, Mr. Morison redacted the social security numbers and employee identification numbers of persons other than Ms. Bratcher, pursuant to the "'clearly unwarranted invasion of personal privacy' exemption [KRS 61.878(1)(a)]." In closing, Mr. Morison again apologizes to Ms. Bratcher for the delay, as well as his failure to "stay in better touch" throughout the process.
Addressing first the procedural issue presented, the failure of U of L to respond to Ms. Bratcher's request in writing, within three business days of receipt, constitutes a violation of KRS 61.880(1), despite the explanation for the delay belatedly provided by U of L. KRS 61.880(1) sets forth the procedural guidelines which a public agency must comply with in responding to requests submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision. 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 applying this provision, the Attorney General has consistently 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). Contrary to [U of L's] apparent belief, the 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 the 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 82-300, 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 the 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. Here, someone acting on behalf of Mr. Morison responded to Ms. Bratcher's request dated February 11, 2005, on February 22, 2005, indicating that the records would "hopefully" be available on February 28, 2005, as reflected by the record. On appeal, U of L concedes as much, explaining in detail the reasons for this delay, which include Mr. Morison's absence from the country, and unexpected technical difficulties associated with the newly adopted practice of electronically transmitting documents. Although U of L could not foresee the latter difficulties, the former should not affect the ability of U of L to respond as acknowledged by Mr. Morison. Nor does either circumstance remedy the failure of U of L to provide a detailed explanation for the delay in a timely fashion. From a procedural standpoint, the response of U of L was therefore not consistent with the Open Records Act.
In general, a public agency cannot postpone or delay this statutory deadline. "The burden on the agency to respond within three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5)." 02-ORD-165, p. 3. Unless the person to whom the request is directed does not have custody or control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. Id., citing 93-ORD-134. If, on the other hand, any of those conditions exist, the agency must " immediately so notify" the requester, and designate a place, time, and date for inspection "not to exceed" three days from receipt of the request, " 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. " KRS 61.872(5) (Emphasis added); 02-ORD-165. In other words, KRS 61.872(5) dictates 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. 01-ORD-38, p. 5 (Emphasis added).
Although U of L has belatedly complied with this provision, and the delay was apparently not intentional, U of L is required, as a public agency, to have a mechanism in place to ensure the timely receipt and efficient processing of requests submitted pursuant to the Open Records Act. While this office appreciates the challenges impeding the ability of U of L to comply with these requirements in this instance, a "public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act. " 02-ORD-165, p. 3. In the event that the official records custodian is absent, "an individual should [be] appointed as acting custodian to respond to open records requests in a timely fashion. " 94-ORD-86, p. 4; 02-ORD-165, p. 3 ("If the records custodian goes on vacation, or is unable to attend to his duties because of illness, or an accident, the agency is obligated to designate another person to review and handle open records requests in the absence of the regular custodian of the records"). See also 96-ORD-185. Neither the press of business nor the absence of the official custodian justifies a delay in providing access to public records. 02-ORD-165, p. 3. "It is incumbent on [U of L], as it is on any public agency, to make proper provision for the uninterrupted processing of open records requests." 01-ORD-140, p. 6. Any other interpretation of the Open Records Act would be "clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the [Act],"
Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, Inc., Ky., 834 S.W.2d 681, 682 (1992), and the recognition that "the value of information is partly a function of time." Fiduccia, supra, at 1041. As repeatedly observed by the Attorney General, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 03-ORD-125, p. 5.
40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. Such is the case here. In applying this mandate, the Attorney General has long recognized that if access to the public records for which inspection or copying is sought is initially denied but subsequently granted, the propriety of the initial denial becomes a moot issue. Absent evidence to the contrary, this office assumes that Ms. Bratcher has now inspected and/or received copies of any existing records which are responsive to both of her requests from U of L as agreed with the noted exception. That being the case, the Attorney General must decline to issue a decision on the merits as to those records.
With respect to the letter directed to U of L counsel Angela Koshewa by attorney Brent R. Baughman, U of L has identified the specific record being withheld, but has not articulated the basis for its denial in terms of the privilege codified at KRS 503(b), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l), as required to satisfy its burden of proof relative to that record. On this issue, the analysis contained in 04-ORD-187, a copy of which is attached hereto and incorporated by reference, is equally determinative here. As in 04-ORD-187, 00-ORD-111, and 00-ORD-10, the agency has not adequately explained how the privilege applies to the record withheld as mandated by KRS 61.880(1) and KRE 503. Although U of L is certainly entitled to withhold those records which qualify for exclusion as confidential communications between attorney and client, U of L must identify the record being withheld, and articulate its denial in terms of the privilege in order to fully discharge its statutory duty. In light of this determination, the remaining question is whether U of L properly redacted identifying information of other employees, such as social security numbers and employee identification numbers, from the records provided to Ms. Bratcher.
As long recognized by this office:
A public employee's name, position, work station, and salary are subject to public inspection, as well as portions of the employee's resume reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment. See, for example, OAG 76-717, OAG 87-37, OAG 91-41, OAG 91-48, OAG 92-59, 94-ORD-26. In addition, reprimands to employees regarding job-related misconduct, and disciplinary records generally, have traditionally been treated as open records. See, for example, OAG 78-133, OAG 91-20, OAG 92-34, 95-ORD-123, 96-ORD-86. Letters of resignation submitted by public employees have also been characterized as open records. 94-ORD-108.
Conversely, this office has affirmed agency denial of access to a public employee's home address, social security number, medical records, and marital status on the grounds that disclosure would constitute a clearly unwarranted invasion of personal privacy. See, for example, OAG 79-275, OAG 87-37, OAG 90-60, OAG 91-81, 94-ORD-91. Such matters are unrelated to the performance of public employment. Employee evaluations have also been held to fall within the parameters of KRS 61.878(1)(a) for the reasons stated in OAGs 77-394, 79-348, 80-58, 82-204, 86-15, and 89-90.
97-ORD-66, p. 5; 03-ORD-213. Because the instant appeal presents no reason to depart from this precedent, the same outcome necessarily follows. In redacting the identifying information of other employees, U of L properly relied upon KRS 61.878(1)(a). Such action is also consistent with KRS 61.878(4), which provides: "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination." With the noted exceptions, U of L has fulfilled its obligation pursuant to the Open Records Act.
A party aggrieved by this decision may appeal it by initiating an 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.
Judith F. Bratcher576 Fulton StreetSellersburg, IN 47172
Sherri PawsonUniversity Archives & Records CenterUniversity of Louisville400 Ekstrom LibraryLouisville, KY 40292
Angela D. KoshewaGeneral CounselUniversity of LouisvilleGrawemeyer Hall, Room 206Louisville, KY 40292
Dr. William J. MorisonU of L Open Records Officer & Director, UARCUniversity of Louisville400 Ekstrom LibraryLouisville, KY 40292