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 University of Kentucky violated the Open Records Act in partially denying the October 28, 2005, and the October 31, 2005, open records requests of Robert R. Furnier for records relating to the University's investigation of Mr. Furnier's client, Coach Claude Bassett, for possible NCAA violations during Mr. Bassett's tenure as the football team's recruiting coordinator. For the reason's that follow, we conclude that Mr. Furnier's requests were of an identified and limited class to enable the University to locate and produce responsive records for inspection and copying and that the agency's denial of these requests violated the Open Records Act.
In the instant appeal Mr. Furnier challenges the University's responses to request no. 8 of his October 28, 2005, request and request no. 1 of his October 31, 2005, request. 1 These two requests and the University's response to each are as follows:
Request no. 8 (October 28, 2005):
All records within the University of Kentucky or University of Kentucky Athletic Association relating to their investigations of Coach Claude Bassett for NCAA violations conducted between his resignation from the University of Kentucky Athletic Association in late November 2000 through January 30, 2002, the date the National Collegiate Athletics Association announced its findings concerning rules infractions in the University of Kentucky football program.
University's Response (November 3, 2005):
The Attorney General has stated, "As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review. OAG 91-58. We have previously held that "[b]lanket requests for information on a particular subject without specifying certain documents need not be honored." 95-ORD-27. Also see Attorney General Opinion 96-ORD-95. It is our opinion that your request is overly broad and without "reasonable particularity" to enable us to conduct a proper search for responsive records.
However, in our search efforts for records responsive to another Open Records request we are working on for you; we will certainly look for records responsive to this request as well. We need additional time to search for records to ascertain if any such responsive records exist. We will respond to you as soon as our search efforts are complete which we anticipate will be no later than December 2, 2005.
Request no. 1 (October 31, 2005):
All documents in the possession of the University of Kentucky, its agents, employees, or representatives that concern or pertain to any investigation of Coach Claude Bassett and all allegations of potential violations of NCAA Recruiting Guidelines.
University's Response (November 3, 2005):
As we advised your firm on January 25, 2001 in response to this same request, and as I am sure you are aware, the purpose of the Kentucky Open Records Act is to provide access to non-exempt public records. In Attorney General Opinion 95-ORD-27, the Attorney General opined,
"As a precondition to inspection, a requesting party must identify with 'reasonable particularity' those documents which he wishes to review. OAG 89-91, OAG 91-58. Thus, in a series of opinions, we have previously held that [b]lanket requests for information on a particular subject without specifying certain documents need not be honored." OAG 76-375; OAG 83-386; OAG 85-88; OAG 89-8; OAG 89-61; OAG 91-58."
It is the University's position that your request is overly broad and without 'reasonable particularity' to enable us to conduct a proper search for responsive records.
In his letter of appeal, Mr. Furnier asserts that, as a former public employee, Mr. Bassett is entitled to inspect and copy records relating to investigations into his conduct under KRS 61.878(3) and, challenging the University's position that his requests are overly broad and without reasonable particularity, he argues, in relevant part:
By its terms, the statute [KRS 61.878(3)] allows broad access by allowing a public agency employee to inspect "any record . . . that relates to him." Yet, the University refuses to disclose to Coach Bassett investigatory records that relate to him, contending his requests are "overly broad and without 'reasonable particularity' to enable [UK] to conduct a proper search for responsive records." UK cannot refus[e] disclosure, though, where the records sought are of an identified, limited class as in this case -- records relating to an investigation into an employee's alleged misconduct. 05-ORD-67.
?
The University should be able to locate records fairly easily relating to its investigation into Coach Bassett's conduct. According to the "University of Kentucky Self-Disclosure of Internal Investigation," the University's report to the NCAA of its investigation, only a handful of employees conducted the investigation:
The Report goes on to describe in specific detail the records reviewed and persons interviewed during the course of the investigation. [Report, p. 4-5.] In fact, UK has already supplied many of the records requested to outside parties. UK President Lee Todd admits as much to Thomas Yeager, Chairman of the NCAA Division I Committee on Infractions, in correspondence on December 19, 2001:
Moreover, Coach Bassett and the UKAA - an entity associated with UK - are in litigation. Because the University is not a party to the action, Coach Bassett must procure records in UK's possession by subpoena or by Open Records Act request. Given the NCAA investigation is the litigation's focus, UK probably has already gathered all records relating to the investigation to help the UKAA prepare its defense.
After receipt of notification of the appeal and a copy of the letter of appeal, Joshua M. Salsburey, attorney at law, submitted a supplemental response on behalf of the University, to the issues raised in the appeal. In his response, Mr. Salsburey reiterated the University's position that Mr. Furnier's requests were not stated with sufficient particularity to require the University to search for records that may be responsive to the requests. Arguing that Mr. Furnier's request is not from a limited class of records, but a multitude of classes, Mr. Salsburey stated:
The truth here is this: Mr. Furnier does not just seek a "limited class" of documents. In the October 28, 2005 request at issue, Furnier apparently seeks not just records within a class, such as those gathered or created in the University's investigation of Coach Bassett's recruiting violations, but also all records "relating to" investigations of potential violations of NCAA recruiting guidelines. This seemingly small adjustment in semantics take Furnier's request from one of records of a "limited class" to one for records from a near boundless class (or, more accurately, classes) of records.
Indeed, on its face, Furnier's request seeks investigations of even potential violations, as opposed to confirmed violations like Claude Bassett's. What is more, the request is not limited to potential violations in the University's football program but, rather, at face value extends to potential violations involving any and/or all of the University's 22 varsity sports. This certainly is not a "limited class" of documents as Furnier contends. The same holds true for the October 31, 2005 request at issue, which seeks "all documents" that "concern or pertain to any investigation" of Claude Bassett.
In a reply to the University's supplemental response, Mr. Furnier reasserted his position that the requests were "for documents relating to a specific disciplinary action taken against Coach Bassett, an NCAA investigation, that KRS 61.878(3) expressly permits the coach to inspect and to copy," and that "[w]hile UK investigated multiple incidents, each involved Coach Bassett's activities at a specific time and location." Mr. Furnier argued that the University has had only one NCAA investigation involving Coach Bassett and "cannot seriously pretend to be oblivious to the identity and location of the records that Coach Bassett seeks."
We are asked to determine whether the University's denial of the two requests at issue violated the Open Records Act. For the reasons that follow, we find that Mr. Furnier's requests were described with "reasonable particularity" to enable the University to identify and locate the records since the records are of an identified, limited class and conclude the University violated the Act in denying Mr. Furnier's requests at issue.
In 04-ORD-028, we upheld that a request to inspect records "relating to an investigation of the Thomson-Hood Veterans Center regarding the circumstances of an injury to Joseph Adams on June 11, 2002," was "specific and narrow enough" to meet this standard. 04-ORD-028, p. 8. Our conclusion in 04-ORD-028 was premised on the fact that the requester sought to inspect " investigatory records relating to an isolated incident involving a named individual that occurred at a designated location on a specific date." Id. We held that the request identified the requested records with "reasonable particularity" to enable the Veterans Center to locate and retrieve the records since they were of an identified, limited class. In our view, the analysis contained in 04-ORD-028, pp. 4-12, is equally applicable to the facts presented in the instant appeal.
Mr. Furnier's requests for all records relating to the University's investigation of Mr. Bassett for NCAA violations conducted between his resignation in late November 2000 through January 30, 2002, were specific and narrow enough for the University to identify and locate responsive records. Mr. Furnier was requesting to inspect investigatory records relating to a specific individual, incident, location, and time frame. In addressing the degree of specificity required in drafting a request, this office has recognized:
An open records request should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the request does not require "the specificity . . . of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government." 95-ORD-49, p. 5, citing Providence Journal Company v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.R.I. 1978). Instead, the requester should submit "a brief and simple request for the [government] to make full disclosure or openly assert its reason for nondisclosure." Id. Requests must be framed with sufficient clarity and directness to enable the custodian of records to identify and retrieve the records [the requester] wishes to access. This, as we have so often noted, is a precondition to inspection of public records. See e.g., 92-ORD-1261, and authorities cited therein.
03-ORD-012, p. 3, citing 99-ORD-140, p. 6. Although the requests were broad and this office has previously criticized "open ended any-and-all-records-that-relate" to particular subject types of requests in 96-ORD-101 and 99-ORD-14, we find that the records requested in the instant appeal are of an identified and limited class of records to enable the University to locate and produce the records for inspection and copying. See, 04-ORD-028. The University has not established that to locate and retrieve records relating to its investigation of Mr. Bassett would place an unreasonable burden upon it. 2
Although we do not speculate regarding the records management procedures adopted by the University in maintaining its records relating to the investigation, it stands to reason that a mechanism exists by which its records custodian can locate and retrieve records of a limited class, i.e., the investigative records relating to the investigation of Mr. Bassett. As we held in 04-ORD-028, the University must use that mechanism in conducting a search for the requested records based on the standard articulated in 95-ORD-96:
[T]he Open Records Act does not require an agency to conduct "an exhaustive exhumation of records," Cerveny v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D.N.Y. 1983). It is, however, incumbent on the agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, supra at 775. Thus, the agency must expend reasonable efforts to identify and locate the requested records. And, if the documents do exist, and the public agency cannot locate them, the agency's "good faith [sh]ould not be impugned unless there was some reason to believe that the supposed documents could be located without an unreasonably burdensome search." Goland v. Central Intelligence Agency, 607 F.2d 339, 353 (D.C. Cir. 1979). In assessing the adequacy of an agency search, we "need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).
Id., pp. 7, 8.
Accordingly, the University should make the requested records available for Mr. Furnier's inspection. If any of the requested records are exempt from inspection under an applicable exception in KRS 61.878(1), the University should identify, in writing, any responsive record withheld and explain how the exception applies to the record withheld as required by KRS 61.880(1).
Moreover, as a former public employee, Mr. Bassett has a greater right of access to the investigative records at issue than the public generally. 01-ORD-126. 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.
In discussing the application of KRS 61.878(3) and the exceptions set forth in KRS 61.878(1), the office stated:
When applicable, KRS 61.878(3) overrides all of the exemptions to public inspection set forth in KRS 61.878(1) with the exceptions of KRS 61.878(1)(k), pertaining to records or information the disclosure of which is prohibited by federal law or regulation, and KRS 61.878(1)(l), pertaining to records or information the disclosure of which is prohibited, restricted, or otherwise made confidential by enactment of the General Assembly.
97-ORD-87, p. 4. Accordingly, Mr. Bassett is entitled, to inspect records relating to him, including records relating to his job performance or disciplinary actions, that are not otherwise exempt from disclosure under KRS 61.878(1)(k) and (l).
In addition, the University states that the requests at issue have been made and responded to on at least three prior occasions and argues that these repetitive requests constitute harassment and relieves the University from responding to the requests again under KRS 61.872(6). In response, Mr. Furnier argues that, beyond the repetitiveness of the requests, the University "has offered no evidence, much less clear and convincing evidence, to justify its reliance upon this section." We agree with Mr. Furnier's position. In 05-ORD-067, p. 5, this office, quoting OAG 77-151, p. 3, observed:
Repeated requests to inspect records of a public agency alone do not, in our opinion, amount to harassment. Every request to inspect a public record causes some inconvenience to the staff of the public agency . . . We believe that a public agency should only invoke the excuse of harassment in extreme and abusive circumstances. We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection.
On this issue, the University has not established with clear and convincing evidence the repetitive requests placed an unreasonable burden on it or were intended to disrupt the essential functions of the agency. Thus, we find its reliance on KRS 61.872(6) is misplaced.
Finally, the University argues that failure of Mr. Furnier to appeal the University's responses to similar previous requests estops him from challenging the same responses in the instant appeal. We find no support for this position either in the Open Records Act or the facts of this case and, thus, reject this argument.
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.
Robert R. FurnierFurnier & Flagel LLCOne Financial Way, Suite 312Cincinnati, OH 45242
Frank ButlerOfficial Records CustodianUniversity of Kentucky301 Main BuildingLexington, KY 40506-0032
Barbara JonesGeneral CounselUniversity of Kentucky301 Main BuildingLexington, KY 40506-0032
Joshua M. SalsbureySturgill, Turner, Barker & Moloney155 East Main StreetLexington, KY 40507
Footnotes
Footnotes
1 In these two October requests, Mr. Furnier submitted a total of 39 individually numbered requests to the University. The University, in its supplemental response to the letter of appeal, indicated that it had provided documents responsive to nine of the requests and had advised Mr. Furnier that it would search for records responsive to 28 other requests, including records responsive to request no. 8 set out above, generally advising: "We need additional time to search for records to ascertain if any such records exist that are responsive to your requests. Records may be in off-site storage locations, archives or may no longer exist. We will respond to you as soon as our search efforts are complete which we anticipate will be no later than December 2, 2005." These responses are not at issue in the instant appeal.
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2 In its supplemental response, the University argued that Mr. Furnier's requests included a boundless class of all potential violations of NCAA recruiting violations involving any and/or all of the University's varsity sports. We do not interpret Mr. Furnier's requests to be so expansive and restrict our holding to the records related to the University's investigation of Claude Bassett.
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