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 Eastern Kentucky University violated, or otherwise subverted the intent of, 1 the Open Records Act in the disposition of a series of information and records requests submitted by Matthew James Dean and relating to his appeal of a parking citation. Notwithstanding the breadth of Mr. Dean's requests, and the fact that many of his requests were improperly framed as requests for information rather than requests for public records, we find that EKU did not comply with the procedural requirements of the Act in the disposition of his request. Additionally, we find that because EKU partially denied his requests by withholding personally identifiable information from parking citation appeals pursuant to KRS 61.878(1)(a), (k) and 20 U.S.C. § 1232g, and unspecified documents pursuant to KRS 61.878(1)(l) and the attorney-client privilege, the appeal cannot be mooted on the basis of 40 KAR 1:030 Section 6. Finally, we find that although existing legal authority supports EKU's invocation of 20 U.S.C. § 1232g to deny Mr. Dean access to personally identifiable student information appearing in parking citations appeals, EKU has not met its statutory burden of proof relative to the invocation of the attorney-client privilege and that unless it can establish that the records withheld satisfy each of the requirements of the privilege, codified at KRE 503, those records must be disclosed.
A brief summary of the facts giving rise to this appeal follow:
1/19/05 - Mr. Dean submits "Questions for formal appeal and letter of complaint for citation #705813," consisting of 33 questions and a "Request for document production." Mr. Dean requests "any relevant documents related to any of [his 33 questions]," "all approved citation appeals and the reasoning the individuals gave in their appeals," "any documents received from [Mr. Dean], given to [Mr. Dean] by the Parking and Transportation office, and any communications about . . . or that mention [Mr. Dean]," and "the citation and appeal form submitted by Gustave Anderson and Angela Parsons."
1/24/05 - EKU responds to Mr. Dean's request, through University Counsel Cheryl K. Harris, that EKU "anticipate[s] being able to provide a response by . . . February 9, 2005."
2/11/05 - Mr. Dean submits a second request for information to EKU consisting of 28 questions and identifying only one public record which he wished to access by receipt of a copy, to wit, a letter sent by Mark Jozefowicz to Mr. Dean on December 20, 2004.
2/16/05 - Although the record on appeal does not contain a copy of any supporting correspondence, EKU advises in correspondence directed to this office that "[b]ecause of an error by the staff . . . regarding the response date, that response was not provided by 2/9/05," but that staff contacted Mr. Dean on this date "to apologize and to advise that [the Office of Counsel] was continuing to work on the response . . . ."
3/4/05 - EKU responds to Mr. Dean's 1/19 and 2/11 requests by providing statistical information and responding to his written inquiries. Additionally, EKU produces for inspection documents referencing Mr. Dean and his parking citation and appeal and approved citation appeals for the fall 2004 semester, excluding personally identifiable student information per KRS 61.878(1)(a), (k), and 20 U.S.C. § 1232g and "[d]ocuments covered by the attorney-client privilege or attorney work product . . . pursuant to KRS 61.878(1) [sic]."
On appeal, Ms. Harris explains, "given that many of the records to be produced included confidential student records and required extensive redactions, this office undertook substantial effort to respond in a reasonable manner and time frame," and Mr. Dean raised no objection. Further, Ms. Harris advises, although Mr. Dean was notified that records were available for inspection, he had not, as of June 7, 2005, "sought further to examine the documents . . . ."
3/17/05 - Mr. Dean responds to EKU's 3/4 letter seeking clarification of the information provided, questioning the tardiness of EKU's response and the omission of referenced documents, and posing a series of supplemental questions. He indicates that he has not yet received a copy of Mr. Jozefowicz December 20 letter.
4/17/05 - Mr. Dean again requests a copy of Mr. Jozefowicz's letter of December 20.
4/21/05 - EKU produces a copy of the requested letter.
5/5/05 - Mr. Dean "inquire[s] as to the status of [his] 1/19, 2/11, and 3/17 document and informational requests," indicating that this inquiry can be disregarded if EKU "contends that the responses . . . received to date are the University['s] . . . full, final, and complete responses."
On May 23, 2005, Mr. Dean initiated this appeal questioning EKU's compliance with the requirements of the Open Records Act and asserting that the University failed to afford him timely access to the information and records requested. Mr. Dean also maintained that EKU's production of "fallacious information" constituted a violation of the Act. We address only those issues pertaining to procedural compliance, timely access, and the propriety of EKU's partial denial of his request, this office having previously determined that "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." See, e.g. 04-ORD-216, page 3, note 1 (reporter questions validity of invoices produced in response to request, and Attorney General advised that relief sought was unavailable under the Act); see also, 02-ORD-89 (recipient of public records questioned quality and value of the information those records contained and Attorney General refused to consider this issue); 04-ORD-032 (recipient of public records questioned the degree of detail and "verifiability" of records produced in response to open records request and Attorney General characterized the question as one that did not arise under the Open Records Act) ; 04-OMD-182 (questions regarding authenticity of agency's meeting minutes not appropriate for review by Attorney General).
In its supplemental response to Mr. Dean's appeal, EKU emphasizes that although it had no statutory obligation to do so, it honored both his records requests and his informational requests. It was the University's position that pursuant to 40 KAR 1:030 Section 1, Mr. Dean's appeal is moot inasmuch as "[a]ll documents requested to date . . . remain available for his review . . . or have otherwise been provided to him by mail . . . ." Acknowledging the efforts undertaken by EKU to comply with the Open Records Act, we respectfully disagree.
To begin, we find that EKU failed to strictly comply with the procedural requirements of the Open Records Act as set forth at KRS 61.880(1). In past open records decisions, the Attorney General has 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.
The facts before us in this appeal do not closely mirror either of these extremes. Although not obligated to do so in response to an open records request, EKU compiled information in order to answer Mr. Dean's questions in addition to gathering documents in order to discharge its statutory duty under the Open Records Act. As a result, EKU's final response to his 1/19 request was postponed for a period in excess of one month. Further, it was not until Mr. Dean initiated his appeal that EKU offered the requisite written explanation for the delay, per KRS 61.872(5), explaining that the requested records were voluminous and required extensive redaction. While EKU is to be commended for its willingness to gather information and answer questions in a manner over and above its statutory duty, and while Mr. Dean's records requests were broad in scope and implicated records containing protected information that necessitated redaction, we find that its one month-plus delay in providing Mr. Dean with these records was unreasonable. If EKU elects to continue the voluntary practice of providing information and answering questions in the disposition of open records requests, we suggest that it dedicate its full efforts to the statutorily mandated production of nonexempt records within three business days, unless it gives a detailed explanation for further delay and states the earliest date for inspection, and then turn its attention to the discretionary activities.
Turning to the substantive issues in this appeal, we affirm EKU's partial denial of Mr. Dean's request for approved citation appeals on the basis of 20 U.S.C. § 1232g(b)(1), 2 incorporated into the Open Records Act by operation of KRS 61.878(1)(k), 3 prohibiting disclosure of student education records, excluding records maintained by a law enforcement unit and created by the unit for law enforcement purposes, 4 by educational institutions without the written consent of their parents or the students themselves if they are eligible students 5 within the meaning of the federal law. To the extent that the Parking Appeals Committee at EKU appears to constitute "a component of the educational agency or institution other than the law enforcement unit" that may have issued the underlying citations, 34 C.F.R. § 99.8(b)(2)(i), the appeals which they hear cannot be characterized as nonexempt records of the law enforcement unit. Instead they are education records, within the meaning of 20 U.S.C. § 1232g(a)(4)(A), 6 and entitled to protection under FERPA. We believe that 03-ORD-201, a copy of which is attached hereto and incorporated by reference, is instructive in clarifying the "line of demarcation" between an exempt education record, which these appeals constitute, and a nonexempt law enforcement unit record. Compare 01-ORD-174 (enclosed). It is clear that EKU was obligated, at a minimum, to mask all personally identifiable information in the citation appeals, and we find no error in its decision to do so.
Conversely, we find that absent a showing that the records withheld satisfied each of the requirements found at KRE 503 and CR 26.02(3), EKU erred in withholding "documents covered by the attorney-client privilege or attorney work product . . . pursuant to KRS 61.878(1)[sic]." 7 In 05-ORD-007, a copy of which is attached hereto and incorporated by reference, this office found that the record on appeal contained insufficient evidence to establish that the documents withheld qualified for exclusion under KRS 61.878(1)(l) and CR 26.02(3) and KRE 503. Here, as in the cited decision, we find that EKU fails to present proof that the particular records withheld were prepared in the course of the attorney-client relationship, represent a communication by or to the client agency on the subject matter for which professional advice was sought, or have been handled in a confidential manner. Nor is there sufficient evidence in the record to support the claim that the records withheld were "prepared in anticipation of litigation" and represent "the mental impressions, conclusions, opinions, or legal theories of an attorney . . . ." CR 26.02(3). Compare 03-ORD-243 (enclosed). Here, as in 05-ORD-007, EKU may properly withhold those records that are privileged, or that fall squarely within the parameters of KRS 61.878(1)(l), only if it can articulate, in writing, the reasons for withholding a record, or group of records, with sufficient particularity and detail to enable the public to assess the propriety of its actions. Accord, 98-ORD-124, 98-ORD-179, 00-ORD-111.
In view of the fact that EKU partially denied Mr. Dean's open records requests, we are foreclosed from "mooting" this appeal as EKU urges. 40 KAR 1:030 Section 6 states that "[i]f the 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." At note 1 of 05-ORD-076, this office commented that the administrative regulation "contemplates disclosure of all requested records and not just those deemed nonexempt by the agency." (Emphasis in original.) Because EKU partially denied Mr. Dean's request, we do not agree that the issues raised were mooted by disclosure of the nonexempt records he requested. Having considered those issues, we find that EKU's disposition of his requests was procedurally deficient and substantively correct only if, consistent with the observations set forth above, it establishes that records withheld on the basis of the attorney-client privilege and work product doctrine satisfy each of the requirements of KRE 503 and CR 26.02(3).
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 KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
2 Family Educational Rights and Privacy Act (FERPA).
3 KRS 61.878(1)(k) authorizes public agencies to withhold:
All public records or information the disclosure of which is prohibited by federal law or regulation.
4 34 CFR § 99.8(b)(1)(i), (ii), and (iii).
5 34 CFR § 99.3 defines an "eligible student" as "a student who has reached 18 years of age or is attending an institution of post-secondary education."
6 Education records are expansively defined in FERPA to include "those records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution."
7 In general, agencies resisting disclosure of records on the basis of the attorney-client privilege and attorney work product invoke KRE 503 and CR 26.02(3), respectively, incorporated into the Open Records Act by KRS 61.878(1)(l). EKU may have relied on KRS 61.878(1)(l) because Mr. Dean is engaged in "litigation" with the University and such records are not discoverable by a party to litigation as set forth at KRS 61.878(1).