Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Regional Airport Authority's (Authority) partial denial of Mary Jane Shadowen's request for all Authority records that relate to her or mentions her name violated the Open Records Act. We conclude that the Authority's responses and partial denial of Ms. Shadowen's request were consistent in part and inconsistent in part with the Open Records Act.
By letter dated September 27, 2005, Ms. Shadowen submitted the following request to the Authority:
Pursuant to KRS 61.878(3), I exercise my right as a public agency employee 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."
Please be sure to include all preliminary drafts; notes; correspondence with private individuals; preliminary recommendations; preliminary memoranda; attendance records; parking records; current, archived or backup copies of email, etc. that relate to me or mentions me as these are not excluded in KRS 61.878(3). The timeframe is to include all documents from my date of application for employment with LRAA to the current date.
Realizing there may be a large number of items covered in my request, I request the opportunity to inspect the above records before exercising my right to copy any or all of the records.
By letter dated September 30, 2005, Rande Swann, Public Relations Director and Official Custodian of Records for the Authority, responded to Ms. Shadowen's request advising her that, with certain exceptions, the Authority would make available for her review the records it maintained that were responsive to her request. She further advised that the Authority would not disclose responsive documents that address substantive legal matters protected from disclosure by the attorney-client privilege and the work product doctrine, under authority of KRS 61.878(1)(l) and Kentucky Rule of Evidence 503. Ms. Swann stated that because of the volume of the request and the fact that some of the records were in active use, in storage, or otherwise were not available, that requested records would not be available for her review prior to October 17, 2005 and that she would be notified when the records were ready for inspection.
By letter dated October 5, 2005, the Authority provided Ms. Shadowen with a supplemental response, advising her that after an initial review of the public records it maintained to identify those records responsive to her request, the Authority determined that identification of all records that might be responsive to her request would be unduly burdensome, and denied access to any records beyond those already identified, under authority of KRS 61.872(6). In explaining its denial, the Authority stated in relevant part:
Through its initial review of the public records it maintains that relate to you, the Authority identified personnel records and payroll records which relate to you, and parking tickets which may relate to you, which it will make available for your review. The Authority has determined, however, that the number of records it maintains that relate to you would number in the thousands and require an excessive amount of its employees' time to search through their files, both paper and electronic, for any document that may in some manner relate to you. A search of the emails maintained by the Authority on archived tapes alone would cost thousands of dollars in employee time and contract costs because the Authority does not have the capability to conduct such a search and would have to engage a contractor to do so. Therefore, unless you are willing to narrow your request, the Authority denies your request to the extent you seek records other than those identified herein.
In her letter of appeal, dated October 5, 2005, Ms. Shadowen stated that on September 28, 2005, she was hand delivered an envelope containing an LRAA Records Request form and, by telephone, was advised by the Authority's Human Resource Manager, that it was normal procedure to fill out and sign the form in order to gain access to her records. Ms. Shadowen stated that she received the Authority's September 30, 2005 response on October 3, 2005 and, while the letter was "dated September 30, 2005 and stamped by PB meter 7147444 on September 30, the U. S. Postage service cancellation postmark on the October 1, 2005." Ms. Shadowen requested this office to determine whether the Authority timely responded to her request; whether its delay in providing the records for inspection was unreasonable; and whether the Authority's requirement that she complete the agency's internal form violated the Open Records Act. Citing KRS 61.878(3), she asked whether the Authority could properly deny access to records related to her, under authority of KRS 61.878(1)(l) and Kentucky Rule of Evidence 503. Finally, Ms. Shadowen asked if the fact that Ms. Swann was her immediate supervisor and at the same time, the Authority's Official Custodian of Records, created a conflict of interest in responding to her open records request.
After receipt of notification of the appeal and a copy of the letter of appeal, W. Thomas Halbleib, Jr., Stites & Harbison, by letter dated October 11, 2005, provided this office with a response, on behalf of the Authority, to the issues raised in the appeal. In his response, Mr. Halbleib reiterated that the Authority had offered to make available for Ms. Shadowen's inspection those responsive records it had identified that were not otherwise excluded from disclosure by the Open Records Act. He further advised that as of the date of his response, that Ms. Shadowen had not contacted the Authority's official records custodian regarding such an inspection. Mr. Halbleib, then addressed the other issues raised in Ms. Shadowen's appeal.
Addressing whether the Authority's initial response was timely, Mr. Halbleib advised that the Authority received Ms. Shadowen's request on September 27, 2005 and mailed it's response on September 30, 2005, within the three business day response time requires by KRS 61.880(1).
With respect to that portion of the Authority's initial response that additional time would be needed to locate responsive records and that the records would not be available prior to October 17, 2005, Mr. Halbleib stated that due to the broad, unspecific nature of Ms. Shadowen's request, the Authority initially determined that it would have to locate, retrieve, and analyze records stored offsite by a contractor and this was the reason that the records would not be available before October 17, 2005. In his response, Mr. Halbleib explained:
The Authority made good faith efforts to comply with Ms. Shadowen's broad and unspecific request within the initial three (3) day period. However, given the extensive scope of Ms. Shadowen's request, seventeen (17) days was a reasonable extension. It was only after the Authority had the opportunity to begin inspecting and retrieving potentially responsive records that it determined that it would be unreasonably burdensome to produce all of the records responsive to Ms. Shadowen's request and subsequently notified her of that determination. As mentioned above, to properly comply with Ms. Shadowen's expansive request the Authority would have to review tens of thousands of emails the Authority maintains in its active and archived files. The cost of this endeavor alone, in terms of lost productively and actual dollars, would be prohibitive. Additionally, the Authority would have to review all the paper files of at least a dozen of it employees who maintain records that relate to Ms. Shadowen. Unless Ms. Shadowen is willing to narrow the scope of her request, compliance would place an unreasonable burden on the Authority.
Addressing the internal form, Mr. Halbleib stated that use of the form is not required in making an open records request. He explained that the Authority permits all of its employees to review their official personnel files and make copies without complying with open records request procedures and requires an employee to fill out the internal form. However, in the instant case, Mr. Halbleib advised that the Authority did not require Ms. Shadowen to complete this internal form to review records it has offered to make available pursuant to her open records request.
Mr. Halbleib, then reiterated the Authority's position that it could properly withhold disclosure of responsive records that are protected by the attorney-client privilege or the work product doctrine, under authority of KRS 61.878(1)(l) and Kentucky Rule of Evidence 503.
Addressing whether the fact that Ms. Swann served both as the Authority's official custodian of records and Ms. Shadowen's immediate supervisor presented a conflict of interest, Mr. Halbleib argued that "so long as Ms. Swann fulfills her role as the official custodian without favoritism or bias and complies with dictates of the Act, she may fulfill both independent roles. He noted that Ms. Shadowen had offered no evidence that Ms. Swann's application of the provisions of the Open Records Act to her request had shown any such favoritism or bias.
For the reasons that follow, we conclude that the Authority's responses and partial denial of Ms. Shadowen's request were consistent in part and inconsistent in part with the Open Records Act.
We address first, the Authority's partial denial of Ms. Shadowen's request for all records that relate to her or that mention her name. Citing KRS 61.872(6) 1, the Authority partially denied this request, on the basis that to respond to such a broad and blanket request would require it to review every record maintained by the Authority, which Mr. Halbleib indicated included tens of thousands of emails the agency maintains in its active and archived files, to determine if any responsive records existed, would be unreasonably burdensome.
In 05-ORD-014, we discussed open-ended blanket requests, observing:
As correctly argued by the LFUCG, this office has historically criticized "open-ended-any-and-all-records-that-relate-type requests" relating to a particular subject(s) or individual(s) such as the first request at issue. 03-ORD-040, p. 2; 99-ORD-14; 96-ORD-101. More specifically, the Attorney General has recognized:
99-ORD-14, p. 5 (Emphasis added); 03-ORD-040. . . .
In applying KRS 61.872(6), this office articulated the following standard for determining whether a requester has described the records sought with adequate precision:
The purpose and intent of the Open Records Act is to permit the "free and open examination of public records. " KRS 61.871. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he or she wishes to review. OAG 92-56; OAG 91-58; OAG 89-81. Thus, if a public agency is to provide access to public documents, the requester must identify them with sufficient clarity to enable the agency to locate and make them available. If the requester cannot describe the documents he wishes to inspect with sufficient specificity, there is no requirement that the public agency conduct a search for documents.
94-ORD-12, p. 3 (emphasis added); 02-ORD-246, p. 3; 99-ORD-14, p. 4.
To summarize, our view is that a request for any and all records of a particular type, or which contain a specific name, term, or phrase, is not a properly framed open records request, and generally need not be honored. The records to which Ms. Shadowen requested to inspect have not been identified with reasonable particularity, nor are the records of an identified, limited class. The Authority indicated that the number of records it maintains number in the thousands and that it would require an excessive amount of its employees' time to search through their files, both paper and electronic, for any document that may in some manner relate to Ms. Shadowen or which may mention her name and that a search of the emails maintained by the Authority on archived tapes alone would cost thousands of dollars in employee time and contract costs because the Authority does not have the capability to conduct such a search and would have to engage a contractor to do so.
Accordingly, we find that to require the Authority to conduct a search of every record maintained by the agency to ascertain whether it may relate to Ms. Shadowen or mentioned her name would impose an unreasonable burden on the agency and it properly relied upon KRS 61.872(6) in partially denying her request. 05-ORD-014. This conclusion is not altered by the application of KRS 61.878(3), which this office has construed as vesting public agency employees with the right to access otherwise exempt public records which relate to them. However KRS 61.878(3) has not been construed to relieve public agency employees of the duty to describe those records with sufficient specificity to enable the public agency to identify, locate, and retrieve the records. 99-ORD-14, p. 6. Nor has it been construed to impose an additional duty on the agency to conduct an extensive search of records or embark upon an unproductive "fishing expedition" in an attempt to satisfy a nonspecific request. Id. That being said, this office encourages Ms. Shadowen and the Authority to continue working toward an amicable resolution of this dispute -- Ms. Shadowen by framing her request with more precision, and the Authority by continuing to exhibit a spirit of cooperation. As noted in its responses, the Authority has advised Ms. Shadowen that it has identified personnel records and payroll records which relate to her, and parking tickets which may relate to her and are available for her inspection.
We next address the issue as to whether the Authority timely responded to Ms. Shadowen's September 27, 2005 request. The record indicates and the Authority states that it mailed its response to the request on September 30, 2005.
In 96-ORD-207, this office addressed the issue of computation of time for a timely response under the Act. In that decision, we stated:
The computation of time statute, KRS 446.030 (1) (a), which would be applicable to time requirements of the Open Records Act, reads as follows:
In the instant case, the Authority advised the open records request was received Tuesday, September 27, 2005. This would be the date or day of the act after which the three-day period of time begins to run. Thus, Wednesday, September 28, 2005, would be day one. Thursday, September 29, 2005, would be day two, and Friday, September 30, 2005 would be day three. Accordingly, we find the Authority timely mailed its response within three business days after receipt of the request, as required by KRS 61.880(1) 2. 02-ORD-81.
We next address whether the Authority response advising Ms. Shadowen that the records would not be available for inspection before October 17, 2005 was an unreasonable delay in producing the records.
KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records not to exceed three (3) days from receipt of the application, 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.
In its response, the Authority advised Ms. Shadowen that due to the volume of the records maintained by the agency and the fact that some were in active use, in storage, or otherwise not available, review of the records would be delayed until October 17, 2005. In its October 5, 2005 supplemental response, the Authority advised Ms. Shadowen that due to the broad nature of the request in which records had not been identified with reasonable particularity, to locate records responsive to the request would require it to review every record maintained by the Authority to determine if a particular record related to her or mentioned her by name. The Authority further advised Ms. Shadowen that after having the opportunity to begin inspecting and retrieving potentially responsive records, numbered in the thousands, in both paper and electronic files, some of which were maintained in active and archived tapes, and others stored offsite by a contractor, that it determined would be unduly burdensome to produce all records responsive to her request and notified her that, pursuant to KRS 61.872(6), she would not be permitted to review records beyond those already identified for her inspection.
Under these facts, we find the Authority's explanation for the initial delay in producing the requested records for review was sufficient to support an extension of time in producing the records, particularly due to the breadth and nonspecific nature of the request, the volume of records implicated, and the fact that many of the records were in active use, in archives, or stored offsite by a contractor. See 02-ORD-158; 99-ORD-26.
Addressing the internal form issue, the Authority explained that it permits all of its employees to review their official personnel files and make copies and requires an employee to fill out the internal form, but that it does not require use of the form for an open records request. In the instant case, the Authority did not require Ms. Shadowen to complete this internal form to review records it has offered to make available pursuant to her open records request. Accordingly, we find no violation of the Open Records Act in this regard.
We address next the issue of whether the Authority properly denied Ms. Shadowen access to records related to her under the attorney-client privilege and work product doctrine. KRS 61.878(1)(l), and KRE 503.
Both the courts and this office have recognized that public records may be withheld from disclosure under the attorney-client privilege and work-product doctrine privileges in the context of an open records dispute where all of the elements of the privileges are present. See
Hahn v. University of Louisville, Ky.App., 80 S.W.3d 771 (2001); 02-ORD-161; 01-ORD-246. These authorities also support the view that although a public employee is generally vested with a greater right to access to records relating to that employee, pursuant to KRS 61.878(3), that right is overridden by KRS 61.878(1)(l), incorporating the attorney-client and work product privileges into the Open Records Act. 01-ORD-246. Nevertheless, at pages fourteen through eighteen of the latter decision, the Attorney General recognized that a public agency "cannot withhold every document that relates to a particular matter under KRS 61.878(1)[(1)] and the attorney-client/ work-product doctrine simply because it is represented by an attorney in the matter." 01-ORD-246, p. 17, citing OAG 91-109 and OAG 88-25. Similarly, in 03-ORD-015, we reminded the Justice Cabinet that there is no "litigation" or "residual" exception that can be invoked by an agency solely because it is engaged in litigation, or in this case, threatened litigation. There, we emphasized that the attorney-client privilege and work product doctrine could not "be invoked absent a showing that each of the elements of KRE 503 or CR 26.02 are present," and noted that the Cabinet had made "no such showing relative to the disputed [GOT] report." Id. at 6.
The Authority's responses did not identify the documents or groups of documents withheld or adequately explain how the exemptions relied upon apply to those records. We therefore find that although the Authority may withhold those records which qualify for exclusion under the cited exemptions, it is obligated to identify in general terms the records withheld and articulate the reasons for withholding those responsive records in terms of the requirements of the exemptions. Accordingly, unless the authority can substantiate that the records withheld pursuant to KRS 61.878(1)(l) and KRE 503 are exempt under the attorney-client privilege, or other applicable exemption, they must be made available for Ms. Shadowen's inspection.
Finally, absent any facts to the contrary, where there is no showing of favoritism or bias by the custodian of records in the performance of her duties under the Open Records Act, we find no inherent conflict of interest in the Authority's official custodian of records also being Ms. Shadowen's immediate supervisor.
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 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
2 In her letter of appeal, Ms. Shadowen notes that the letter "dated September 30, 2005 and stamped by PB meter 7147444 on September 30, the U. S. Postage service cancellation postmark on the October 1, 2005." We have insufficient information to determine the reason for the different dates, but nevertheless find that, under the facts as presented, the response of the Authority at a minimum was in substantial compliance with KRS 61.880(1).