Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
[EDITOR'S NOTE: THE ORIGINAL SOURCE CONTAINED ILLEGIBLE WORDS AND/OR MISSING TEXT. THE LEXIS SERVICE WILL PLACE THE CORRECTED VERSION ON-LINE UPON RECEIPT.]
Open Records Decision
At issue in this appeal is whether the Louisville Water Company subverted the intent of the Open Records Act short of denial of inspection in failing to afford Diana R. Cecil timely access to any and all "written or electronic communications regarding now former employee, Diana R. Cecil . . . or [her] employment status at LWC on or after November 2, 2005." Because Ms. Cecil did not satisfy the precondition to inspection of framing her request with sufficient specificity, the LWC was not required to conduct a search for responsive records. Having ultimately provided a detailed explanation of the cause for delay in writing, and subsequently complied with Ms. Cecil's request upon locating responsive records, the LWC has exceeded its duty under the Open Records Act.
By letter directed to Barbara Dickens, General Counsel and Official Custodian of Records, on November 14, 2005, Ms. Cecil requested copies of the following:
Any and all written or electronic communications regarding now former employee, Diana R. Cecil, sent by the President, Vice Presidents, Business System Owners (BSO's), Process Owners (PO's) and employees of the Louisville Water Company (LWC). These [e]-mails include but are not limited to written or electronic communications to and/or from John Huber, Greg Heitzman, Bob Miller, Karla Teasley, Susan Lehmann, Jim Smith, Jim Assef, Ralph McCord, Phil Scott, Kathy Schroeder, Keith Coombs, James Bates, Daniel Tegene, James Mok, Jim Grunow, Cindy Kowalski, Ron Eiler, Ted Niemann, Anthony Hewitt, Patti Kaelin, Wayne Kimbel, and all others who transmitted or received communication regarding me or my employment status at LWC on or after November 2, 2005.
In a timely written response, Ms. Dickens advised Ms. Cecil that she was "currently reviewing" her request; however, it was "overly broad as written because it includes any and all written communications regarding you by any employee." Because the LWC "has over 450 employees, such a request would require significant file review to respond." Accordingly, Ms. Dickens was reviewing "electronic communications between and among the employees specifically listed" in Ms. Cecil's request to determine whether responsive documents were generated by those employees during the timeframe of November 2nd to the present regarding her employment status that are subject to disclosure. Given that a "manual review of all the documents for those 21 named employees" was necessitated, Ms. Dickens agreed to provide either "a written update regarding the status" of her request to Ms. Cecil or "a completed response no later than Monday, November 28, 2005."
Requesting a review by this office of the LWC's "failure to issue a timely response," Ms. Cecil initiated this appeal by letter dated November 29, 2005. According to Ms. Cecil, many of the 450 LWC employees do not have access to e-mail "and/or their positions are in field construction with little or no described communications generated or received by them." While Ms. Cecil does not know the exact number of employees without access, Ms. Dickens' "claim misrepresents the supposed difficulty" of honoring her request.
Upon receiving notification of Ms. Cecil's appeal from this office, Ms. Dickens supplemented her response on behalf of the LWC. 1 To begin, Ms. Dickens advises this office that she reviewed the LWC files "and produced records" on November 29, 2005, for "some of the employees listed" in Ms. Cecil's request of November 14, 2005. In addition, the LWC continues to review e-mail accounts for responsive communications "and will produce them as we find them." As of December 7, 2005, the date of her response, the LWC had not located additional responsive records. Disputing Ms. Cecil's claim as to the simplicity of accessing the accounts in question, Ms. Dickens explains:
The email searching capabilities of the company's software do not allow searches of any attachments in any email, but only of the fields in the email. Furthermore, the searching capabilities are not refined enough to pick up any and all references that may make the email responsive to Ms. Cecil's request. (See attached Affidavit of Tony Gregory). Therefore, while I could do a broad search and pick up some of the emails, the records made available from such a broad key word search may not make up a full and complete response. Consequently, I am forced to manually review all the emails for all employees who have email addresses in order to ensure we are producing all responsive records.
This is further complicated by the fact that because some of the emails may be protected by the attorney-client privilege, we have only two staff (members) in the legal department able to review the records.
In conclusion, Ms. Dickens observes that the LWC has "no intention" of denying Ms. Cecil access to records subject to the Open Records Act. To the contrary, Ms. Cecil submitted another request following the request at issue, "and despite it being vague," the LWC has already advised her that "she can come in to review the records that could be responsive to her request." To provide a quicker response to Ms. Cecil's request "based on a cursory review" will not accomplish the goal of providing her with "any and all records responsive to her request." Attached to Ms. Dickens' response is a copy of the referenced affidavit by Mr. Gregory, which verifies her position regarding the limitations of the search mechanism contained in the LWC software. Because the LWC was not statutorily obligated to honor Ms. Cecil's request as framed, it necessarily follows that the LWC did not subvert the intent of the Act by endeavoring to identify and locate any existing records which are responsive to her request in a reasonable timeframe despite the otherwise impermissible delay. 2
Historically, this office has criticized "open-ended-any-and-all-records-that-relate-type requests" relating to particular subject(s) or individual(s) such as the requests in 99-ORD-14 and 96-ORD-101, as well as the "broad discovery request[s]" at issue in 00-ORD-79. 03-ORD-040, p. 2; 04-ORD-193, p. 6. In addressing this issue, the Attorney General has recognized:
A request for any and all records that contain a name [as is the case here], a term, or a phrase is not a properly framed open records request, and . . . it generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispensed and ill-defined records.
99-ORD-14, p. 5 (Emphasis added); 03-ORD-040. In 94-ORD-12, this office articulated the following standard for determining whether a requester has described the records sought with sufficient 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 91-58; OAG 89-81; OAG 92-56. 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 such documents.
Id., p. 3 (Emphasis added); 02-ORD-246, p. 3; 99-ORD-14, p. 4. Such is the case here.
By requesting to inspect "any and all" written or electronic communications between the named individuals "and all others" regarding her or her employment status on or after November 2, 2005, Ms. Cecil failed to describe the records sought with "sufficient clarity" so as to enable the LWC to identify and locate all responsive records. In contrast, a request to inspect only those 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 upon the fact 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. Unlike the records at issue in 04-ORD-028, for example, the records to which Ms. Cecil requested access were not identified with "reasonable particularity, " nor were the records of an "identified, limited class" as required for the LWC to locate any and all responsive records as requested. In other words, Ms. Cecil's description is not sufficiently "precise," the intentionally higher standard that a requester must satisfy in order to access records by mail. 3
As framed, the LWC could not estimate the number of records encompassed by the request or the amount of time LWC employees would be required to expend in locating, retrieving, and producing the records, assuming such records existed. In order to comply with a request for any and all records relating to Ms. Cecil or her employment status, the LWC would be required to review every record, "regardless of physical form or characteristics," which was "prepared, owned, used, in the possession of or retained by [it]," that was generated during the specified timeframe to determine if the record references her or her status. Such a request is properly characterized as a "request for research to be performed, rather than for inspection of reasonably identified public records" ; this office has consistently recognized that the Open Records Act "[does] not require public agencies to carry out research or compile information to conform to a given request." OAG 89-45, p. 3, citing OAG 79-547 and OAG 83-333. Because Ms. Cecil failed to satisfy this "precondition to inspection, " the burden of proof did not shift to the LWC. 4 That being the case, the LWC did not violate or subvert the intent of the Act in responding to Ms. Cecil's request. To the contrary, the LWC appears to have responded in good faith to Ms. Cecil's inquiries.
Although "it is the legislative intent that public agency employees exercise patience and long-suffering in making public records available for public inspection, " the LWC has fulfilled that obligation here as documented by the record on appeal. OAG 77-151, p. 3. More specifically, Ms. Dickens personally conducted a search of all files and records that were potentially responsive to Ms. Cecil's request as framed, and provided her with copies upon locating any e-mails matching the description given; 5 nothing more is required. Public employees "are the servants of all the people and not only of persons who make extreme and unreasonable demands on their time." OAG 76-375, p. 4. 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.
When 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 [the LWC'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 (emphasis added). Because the parameters of Ms. Cecil's request as framed were impermissibly broad, the records implicated contain exempt information, and the LWC has substantiated why the records are "difficult to locate and retrieve," the timeframe involved here is reasonable in our view; by initially failing to provide a sufficiently detailed explanation of the cause for delay the LWC would otherwise be in violation of KRS 61.872(5). Our holding today is limited to the unique facts presented. 6
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 Although the LWC belatedly complied with KRS 61.880(1) and KRS 61.872(5), a response pursuant to 40 KAR 1:030 Section 2 should be viewed as an opportunity to supplement rather than supplant a denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. Accordingly, this office considers supplemental responses that correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or, which offer additional support for the original denial. In responding to future requests, the LWC should mindful of these principles.
2 Upon reviewing her file, Ms. Dickens noticed that she had not provided this office with copies of responses the LWC directed to Ms. Cecil. On December 27, 2005, Ms. Dickens forwarded copies of the letters directed to Ms. Cecil on November 28, 2005 (advising Ms. Cecil that the accounts of Mr. Huber, Mr. Heitzman, Mr. Kimbel, Mr. McCord, Mr. Miller, Ms. Lehmann, and Mr. Smith had been reviewed with a total of nine pages being enclosed), and December 22, 2005 (having reviewed the accounts of Ms. Kaelin, Mr. Eller, Ms. Kowalski, Mr. Bates, Ms. Schroeder, Mr. Niemann, Mr. Coombs, and Mr. Tegene with copies "not previously submitted" and the rest to follow the first week of January), to this office via facsimile, along with copies of the enclosed responsive e-mails. In addition, Ms. Dickens indicated that she planned to finalize her response "by finishing the review of the remaining accounts by tomorrow." On December 28, 2005, Ms. Dickens forwarded a copy of her final response on behalf of the LWC (having reviewed the accounts of Mr. Teasley, Mr. Assef, Mr. Grunow, Mr. Hewitt, Mr. Mok, and Mr. Scott) to this office via facsimile, including copies of the responsive e-mails.
3 As the Attorney General has consistently recognized, the degree of specificity required of arequester seeking to conduct an on-site inspection of public records as opposed to a requester seeking to receive copies of public records through the mail, is less exacting. 00-ORD-235; 97-ORD-46; 95-ORD-108. In 97-ORD-46, this office made the following observation relative to the burden assumed by the latter type of requester:
KRS 61.872(3)(b) places an additional burden on requesters who wish to access public records by receipt of copies through the mail. Whereas KRS 61.872(2) requires, generally, that the requester "describe" the records which he wishes to access by on-site inspection, KRS 61.872(3)(b) requires the requester to "precisely describe" the records which he wishes to access by mail. In construing KRS 61.872(2), this office has observed:
. . .
A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside Dictionary 926 (1988); "strictly defined accurately stated; definite, " Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal or uncertain." Webster's Third New International Dictionary 1784 (1963). We believe that a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in definite, specific, and unequivocal terms the records he wishes to access by mail.
Id., pp. 2, 3.
4 In the event that the burden had shifted to the LWC, its search for the requested records would have been governed by 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.
5 [ILLEGIBLE FOOTNOTE]
6 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 certain on which the public record will be available for inspection. " KRS 61.872(5); 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.