Request By:
Joan Cash
10328 Keystone Trace
Louisville, KY 40223Harold Workman
President and CEO
Kentucky State Fair Board
P.O. Box 37130
Louisville, KY 40233-7130Ellen Benzing
Executive Director
Office of Legal Affairs
Kentucky Commerce Cabinet
Capitol Plaza Tower, 24th Floor
500 Mero Street
Frankfort, KY 40601
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 Kentucky State Fair Board violated the Open Records Act in the disposition of Joan Cash's July 13, 2005, request for records relating to an hourly pay rate increase for toll gate attendants that took effect in July 2005. For the reasons that follow, we find that the Board's response violated KRS 61.880(1) insofar as the response was not fully dispositive and did not "include a statement of the specific exception authorizing" the partial nondisclosure of responsive records. Because "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," 04ORD-216, p. 3., we do not address Ms. Cash's objections to "discrepancies" in the records disclosed or her demand for "documents that are more responsive to [her] requests."
By letter dated July 13, Ms. Cash requested "documents which pertain to the most recent pay rate and hourly rate increase which took effect in early July 2005 and will be incorporated in the checks issued for the pay period ending July 9, 2005," including "a listing of each toll gate attendant's name and their new hourly rate. " 1 In addition, she requested "correspondence to the Admissions Office which addresses this pay rate and hourly rate increase of July 2005 including a memo which states the 2005 Kentucky State Fair wages and also the hourly and pay rate increase given in July 2005 for the current toll gate attendants. " On July 18, 2005, Kentucky State Fair Board President and CEO Harold Workman provided Ms. Cash with "a listing of hourly wage employees for the toll gates employed July 1, 2005, to date, as well as their pay rate. "
Shortly thereafter, Ms. Cash initiated this appeal noting that the document disclosed "is dated July 15, 2005," and that it contains "several discrepancies, " including the names of two individuals who have not worked at the Kentucky Fair and Exposition Center since May and June 2005, respectively, as well as another individual who "is unknown as a toll gate attendant. " Additionally, Ms. Cash observed, the Board did not honor her request for correspondence and memoranda relating to the pay rate and hourly increase. In closing, she expressed the view that the Board's actions constitute a subversion of the intent of the Open Records Act, and demanded "more responsive" documents.
In supplemental correspondence directed to this office following commencement of Ms. Cash's appeal, Mr. Workman advised:
The list of hourly wage (petty cash) employees for the toll gates and their pay rate provided to Joan Cash in correspondence dated July 18, 2005 came from the computer records in our payroll section. To my knowledge it is an accurate representation of the information contained in the data of our payroll section and I have included a copy of that document.
The only information provided to the Admissions Office denoting the petty cash salaries to be effective 7-1-05 is attached as "page 2". This was part of an internal work paper in the personnel office titled "Petty Cash Employees Hourly Rates Effective 7-1-05". I have enclosed that work paper but redacted the names of individuals.
The attachments to Mr. Workman's letter consist of: 1) a single page document captioned "Kentucky State Fair Board," indicating that it was "[p]repared by KMM 7/15/2005," and identifying 45 employees by their employee identification number, name, title, current hourly rate, and 2005 hourly rate; 2) two copies of page 2 of a document captioned "Petty Cash Salaries" and comprised of two subparts, "Admission Control (year round)" and "Admission Control (used during Fair,)" on one of which the handwritten notation "Effective 7/1/05" appears; 3) a document captioned "Petty Cash Employee Hourly Rates - Effective 7/01/05" identifying 17 position titles and rates of pay; and 4) page 3 of the document captioned "Petty Cash Salaries" containing three subparts, "Salaries for Various Staff - 2005 State Fair," "Petty Cash Employees Currently Working or Will be Brought in for the 2005 Fair: (adjust salaries as of 7/1/05)," and "Yearly Salaries for Various Petty Cash Staff." It is from the latter document that the Fair Board redacted "names of individuals." 2
It is the decision of this office that the Kentucky State Fair Board's original response to Ms. Cash's request was deficient insofar as it failed to acknowledge, in any fashion, her request for "all correspondence to the Admissions Office which addresses this pay rate and hourly rate increase of July 2005 including a memo which states the 2005 Kentucky State Fair wages and also the hourly and pay rate increase given in July 2005 for the current toll gate attendants. " Further, we find that the Board's supplemental response was deficient insofar as it failed to include a statement of the specific exception authorizing nondisclosure of information redacted from those records subsequently disclosed in response to Ms. Cash's request, or a brief explanation of how the exception applies to the information withheld. Finally, we find that although public employees are not required to provide instruction in understanding the meaning or import of information which appears upon records produced, 3 the pagination of the attachments to the Board's supplemental response, consisting of only pages 2 and 3 of a presumptively three page document, suggests the existence of other, undisclosed responsive records that requires some explanation by the Board.
KRS 61.880(1) establishes procedural guidelines for public agency response to an open records request. That statute 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 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). Amplifying on this view, the Attorney General has opined that 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." 93-ORD-125, p. 3. A "limited and perfunctory response" does not "even remotely compl[y] with the requirements of the Act - much less . . . amount[] to substantial compliance." Id . A response that fails to address an entire portion of an open records request is especially egregious. As noted, in its initial response to Ms. Cash's request the Board omitted any reference to that portion of her request seeking correspondence and memoranda relating to the pay rate increase. In its supplemental response, the Board produced a set of ostensibly random documents without any explanation as to the whereabouts, and/or arguably protected status, of page one of the three page document captioned "Petty Cash Salaries. "
To the extent that the Kentucky State Fair Board failed to respond to this portion of Ms. Cash's request, we find that the Board's initial response fell short of the requirement that the agency notify the requester of its decision relative to the records requested per KRS 61.880(1). To the extent that the Board failed to offer any plausible explanation for the nondisclosure of page one of the three page memorandum captioned "Petty Cash Salaries, " we find that its supplemental response fell short of the requirement that it provide particular and detailed information established by the courts in Edmondson v. Alig , above. To the extent that the Board did not locate and produce records responsive to this portion of Ms. Cash's request until after she initiated the instant appeal, we find that its responses raise the issue of the adequacy of its search. Because the Board does not document what steps, if any, were taken to locate responsive records following receipt of her initial request, we conclude that its search was presumptively inadequate, and remind the Board that it is thenceforward required "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." 4 Accord 95-ORD-96; 00-ORD-150; 02-ORD-120; 04-ORD-149.
With reference to the Board's supplemental response to Ms. Cash's request, and the belated production of a record from which information was redacted without explanation, we find that response deficient in failing to include a statement of the specific exception authorizing the redactions and a brief explanation of how the exception applies to the information withheld. Because the Board's response omitted any reference to the exception supporting nondisclosure of the information, which apparently consisted of the "names of individuals" who are "Petty Cash Employees Currently Working or Will be Brought in for the 2005 Fair," and we believe no exception can properly be invoked, we find that the Board must release page 3 of the document captioned "Petty Cash Salaries" to Ms. Cash without redactions.
Nevertheless, this office has consistently refused to adjudicate disputes concerning "discrepancies" in the records produced in response to an open records request. As noted above, at page 3 of 04-ORD-216 we recognized that "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are generally not capable of resolution under the Act." There a requester questioned the validity of invoices produced in response to a request, and the Attorney General advised that the 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); 05-ORD-008 (questions concerning the value of information contained in records produced for public inspection are not justiciable in an open records appeal). Here, as in the cited decisions, we decline Ms. Cash's invitation to assign error under the Open Records Act for "discrepancies" in the record produced for her inspection. If evidence of willful concealment of more accurate or current records exists, Ms. Cash may wish to consider her options under KRS 61.991(2)(a) . Again, the Attorney General's Office is not the appropriate forum for resolution of such issues.
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 Ms. Cash submitted a similar request to the Board on July 6, 2005. Based upon her examination of the documents disclosed in response to that request, Ms. Cash expressed the view that they did "not reflect the most recent pay rate and hourly rate increase" and was prompted to submit the instant request.
2 Our review of the fourth document indicates that a pay rate figure was redacted under the second subpart, at line 4, and the figure "$ 8.00" inserted in a handwritten notation.
3 See OAG 89-91 for this proposition.
4 In this case, for example, such a search would extend to the Admissions Office, and all of its organizational units and employees, as well as any individual in the chain of command who is reasonably likely to have corresponded with, or issued memoranda to, the Admissions Office on the issue of the pay rate increase.