Request By:
Matthew James Dean
Combs Hall, MSC 143
Eastern Kentucky University Campus
521 Lancaster Avenue
Richmond, KY 40475Cheryl K. Harris
University Counsel
Eastern Kentucky University
205 Coates Building, Coates CPO 40A
521 Lancaster Avenue
Richmond, KY 40475-3102
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 the Open Records Act in the disposition of a series of records requests submitted by Matthew James Dean, a student at EKU, that relate to university parking and alleged vehicular infractions committed by individuals operating official vehicles. For the reasons that follow, we affirm EKU's disposition of Mr. Dean's requests. In the interest of brevity, we summarize below the sequence of open records exchanges that give rise to this appeal and the arguments advanced by the parties as well as our analysis of these arguments.
Meeting minutes and agendas for the Parking Appeals Committee from September 20, 2005, to August 30, 2005
On August 30, 2005, Mr. Dean requested "to have made available for [his] inspection and review . . . [m]eeting minutes and agendas for the Parking Appeals Committee from September 20, 2005 to the date of this letter." EKU responded to this request, through University Counsel Cheryl K. Harris, on September 2, 2005, advising Mr. Dean that the Committee "does not keep minutes or utilize agendas at its meetings," 1 but, instead, its "decisions are recorded on each appeal form upon review during each meeting." Ms. Harris indicated, as she had indicated in responding to similar open records requests, that "these documents have been available for [his] review so that [he] could indicate which documents [he] wish[es] to have copied . . . [and] include both the approved and denied appeals."
On appeal, Mr. Dean contends that EKU improperly mischaracterizes his request as a request for " all approved and denied appeals," (emphasis in original), in a deliberate attempt to conceal those documents in contravention of the Act. In support, he notes that the Chief Justice of EKU's Student Court, and Chair of the Parking Appeals Committee, confirmed the existence of Committee minutes in an October 4, 2005, email directed to him, in which she explained that the Committee "does take minutes, although they are not detailed," and that these documents "were given to the University Attorney's office back in August when [Mr. Dean] first requested [them]." Mr. Dean focuses on the discrepancy between the copying charges assessed to date, $ 4.20, and the copying costs which, perforce, would have been assessed if all appeals had been provided.
In supplemental correspondence directed to this office following commencement of this appeal, EKU addressed Mr. Dean's allegations. Ms. Harris explained that his apparent confusion stems from the use of the term "minutes" to describe the records sought; records which have been, and are, available for his inspection. She noted that the records furnished by the Chief Justice/Committee Chair, 2 referenced above, "are not labeled as, identified as, nor determined by [counsel] to be 'minutes' of the committee . . .[, but are] essentially a tally sheet indicating the overall number of parking appeals heard on a particular meeting date with the committee members' signatures at the bottom to indicate his/her presence at that meeting." However they are characterized, Ms. Harris concluded, EKU stands ready to "make available" for Mr. Dean's inspection and review, records responsive to his August 30 request. In our view, the Open Records Act requires nothing more.
The University issued a timely response 3 to Mr. Dean's request in which it extended an offer to him to conduct an onsite inspection of responsive records. He has not availed himself of this opportunity, apparently operating on the assumption that EKU was, and/or is, obligated to transmit the records to him, and that its failure, or refusal, to do so constitutes willful concealment of the records. Because it is not otherwise clear what the basis for his objections are, we draw this inference from this statement that if all responsive records were produced, his "production costs" would substantially exceed the $ 4.20 "stated by the University." In our view, EKU satisfies its obligations under the Open Records Act by affording Mr. Dean the opportunity to conduct an on-site inspection of the records. In so holding, we note that this offer of on-site inspection is consistent with Mr. Dean's August 30 request for "inspection and review." More importantly, it is consistent with the requirements of the Open Records Act.
KRS 61.872(3) establishes guidelines for records inspection under the Act. That statute provides:
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
The Open Records Act contemplates records access by one of two means: on-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. An applicant like Mr. Dean, who lives and/or works in the same county where the public records are located, may be required to inspect the records prior to receiving copies. Eastern Kentucky University is located in Madison County, and Mr. Dean attends EKU, residing on campus. EKU may, therefore, require him to conduct an on-site inspection of the records prior to furnishing him with copies of those records.
Assuming, arguendo , that Mr. Dean lived and worked in a county other than the county where the public records were located, EKU would only be required to honor his request by mailing copies if his request were precise and the requested records readily available within the agency. As noted above, persons who wish to exercise their right of inspection by receipt of copies are required to "precisely describe [] the public records, " and those records must be "readily available within the public agency. " KRS 61.872(3)(b). Thus, KRS 61.872(3)(b) places a greater burden on persons who wish to access records by receipt of copies through the mail to describe "in definite, specific, and unequivocal terms" the desired records. 97-ORD-46, pp. 2,3. Persons who wish to conduct on-site inspection of public records need only "identify them with sufficient clarity to enable the public agency to locate and make them available." OAG 89-8, p. 4. Because Mr. Dean resides in Madison County, we need not resolve the question of whether his description of the requested records was precise and the records readily available. We find no error in EKU's disposition of this request and no evidence of willful concealment of public records.
Report on the "Proposed Parking and Transportation Master Plan" by the University Parking Committee
In his August 30 request, Mr. Dean also asked that EKU "ma[k]e available for [his] inspection and review . . . [t]he report on the Proposed Parking and Transportation Master Plan by the University's Parking Committee." EKU denied this request on September 2, advising Mr. Dean that because "[t]he University Parking Committee has not issued a report . . ., there are no documents in existence which are responsive to this request." Dissatisfied with this response, Mr. Dean resubmitted his request on October 3, noting that it was "apparent" his request for a copy of the report "was not properly understood" and rephrasing the request for "the 'recommendations' (report) presented to President [Joanna K.] Glasser that was referred to by Dr. [James F.] Conneely in an article in the September 1, 2005, edition of The Eastern Progress ." EKU responded to this "rephrased" request on October 6, through University Counsel, advising Mr. Dean that the Committee "has still not issued a final report or made final recommendations and thus any information which may have been provided to the President at this time is preliminary in nature." EKU invoked KRS 61.878(1)(j) in support of its position.
On appeal, Mr. Dean notes that President Glasser referenced the report in her August 26, 2005, convocation, and that Dr. Conneely also referred to the report in the September 1 article in The Eastern Progress , emphasizing that "some suggestions have already been approved." In Mr. Dean's view, he must be afforded access to those "suggestions" that have been acted upon and can no longer "be classified as preliminary . . . ." In supplemental correspondence directed to this office, University Counsel explained:
As evidenced by the text of President Glasser's remarks, the nature of any submittal to her by this advisory committee was clearly preliminary and she had not taken any action on these. She stated that "[t]he 14-member parking advisory committee submitted to me a week ago its feedback on the recommendations contained in the proposed plan" and that she would be taking the committee's feedback under advisement and eventually be making decisions. This "feedback" or information from the advisory committee which was referenced in this speech was a memorandum dated August 8, 2005, from Dr. James Conneely, Vice President of Student Affairs, and is entirely preliminary in nature. The parking advisory committee has no independent authority to determine what final action may be taken relating to parking matters. Rather it serves to provide relevant information, such as possible budget costs relating to various proposals, and opinions relating to a parking consultant's recommendations and any other parking proposals to the president of the University. At the time of Mr. Dean's request, there were no recommendations by this committee, even if preliminary, provided to President Glasser which had been relied upon, adopted or ever referred to by her in making any final decisions regarding the consultant's recommendations.
The references made by Dr. Conneely in his comments to The Eastern Progress related to activities that had already been approved on the basis of the consultant's report, and also in accordance with normal maintenance operations. These activities related to re-striping and signage of some parking lots. The advisory committee did not make any recommendation relating to these activities because these had been approved.
Although EKU acknowledged that preliminary documents forfeit their preliminary characterization if adopted into final action, the University maintained that "there are no documents which include any recommendations or information from this advisory committee relating to these specified activities, and, thus, none that were adopted in any final action at the time of Mr. Dean's request." We find that existing legal authority clearly supports EKU's position.
So as to avoid unnecessarily lengthening this decision by engaging in an analysis of the application of KRS 61.878(1)(j) to preliminary reports that have not been adopted into final action, we attach hereto and incorporate by reference 00-ORD-139, 02-ORD-245, and 06-ORD-061, construing that provision. 4 Fundamental to each of these decisions is the recognition that only "those documents defined in Subsections [(i) and (j)] which became a part of the records adopted by the [agency] as the basis of its final action become releasable as public records. " Kentucky State Board of Medical Licensure v. Courier-Journal, Ky. App., 663 S.W.2d 953, 957 (1983), citing City of Louisville v. Courier-Journal and Louisville Times, Ky. App., 637 S.W.2d 658 (1982), and cited in University of Kentucky v. Courier-Journal and Louisville Times Co., Ky., 830 S.W.2d 373 (1992). In the appeal before us, EKU asserts that no documents exist containing recommendation submitted by the Parking Committee and, perforce, none have been adopted into final agency action. The University offers a plausible explanation for President Glasser and Dr. Conneely's references to the Committee's "recommendations. " EKU is not obligated to disclose records of a preliminary nature that have not become a part of final action, and cannot, in any event, produce for inspection a report that has not been generated. We affirm the University's disposition of this portion of Mr. Dean's request.
Complaints (reports) filed against drivers of University vehicles for traffic violations and resulting disciplinary action
On October 3, 2005, Mr. Dean requested to inspect and review:
[T]he complaint (report) filed against the driver of a University owned vehicle, license plate number: official W0855 on April 4, 2005, . . . [and] the action taken against the person[; and]
[T]he complaint (report) filed with the Division of Public Safety approximately 1 to 2 weeks after the April 4, 2005, incident . . . against an individual driving a white golf cart running a red light at Park Drive and Kit Carson Drive . . . [, and] the disciplinary action taken against this person[.]
EKU responded on October 6. University Counsel advised Mr. Dean that the University was "unable to locate any such complaint or report based on the information [he] provided," but suggested that he "provide any additional information . . . relating to this specific request" and offered to "again attempt to locate any such document(s) that may exist."
Shortly thereafter, Mr. Dean resubmitted his requests, providing the following additional information:
The complaint was received by Michael Kasitz for the April 4 [incident].
The latter complaint (the one involving the Facilities Services worker who was driving a white golf cart) was filed with the Public Safety Dispatcher . . . during the day around 4 PM or so.
The University promptly responded that "[t]here are no such documents responsive to these requests."
On appeal, Mr. Dean asserts that it was he who made both reports, the first in a series of email exchanges with Lt. Kasitz conducted on April 4 and 5, and the second in a telephone call to the Public Safety Dispatcher. Mr. Dean furnished this office with a copy of the April 4-5 emails, but acknowledges his inability to produce proof of the telephone call. It is his position that EKU's apparent refusal to produce these records constitutes willful concealment of those records, or, alternatively, "improper destruction of a document reporting the misusage [sic] of government equipment." 5
In supplemental correspondence, University counsel responded that "every reasonable effort [had been made] to locate any responsive documents . . . based on the information provided by Mr. Dean," but that no documents were located. Again, in the interest of brevity, we do not recite the search methods employed by EKU in order to locate responsive records, University counsel having thoroughly done so in her supplemental response. Our review of the search methods described confirms EKU's position that it made a good faith effort to locate the records using methods that could reasonably be expected to produce the records requested. Additionally, we concur with EKU in its view that "applicable law" does not require it to make any report, or to take any disciplinary action, though we question its position that the subject emails were not subject to a specified retention period. 6 Because EKU cannot produce for inspection and review records which were never produced, or required to be produced, we find no violation in its disposition of this portion of Mr. Dean's request.
When an agency's denial of an open records request is postulated on the nonexistence of records, the Attorney General has traditionally taken the position that the denial does not constitute a violation of the Open Records Act insofar as the agency cannot afford the requester access to a record or records that it does not possess. See, e.g., OAG 83-111; OAG 87-112; OAG 91-112; 97-ORD-17; 01-ORD-11; 02-ORD-120. Where some, but not all, of the requested records are disclosed, this office has generally declined to attempt to "adjudicate a dispute regarding a disparity, if any , between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 4 (emphasis added). We see no reason to depart from that position in the instant appeal.
In 1994 the Open Records Act was amended. The Act now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740, dealing with the management of public records, and of KRS 11.501 to 11.517, 45.253, 171.420, 186A.040, 186A.285, and KRS 194A.146, dealing with the coordination of strategic planning for computerized information systems in state government]." KRS 61.8715. The General Assembly has thus recognized "an essential relationship between the intent of [The Open Records Act] " and statutes relating to records management. Id. Although there are occasions when, under the mandate of this statute, the Attorney General requests that a public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants additional inquiries by this office or referral to the Department for Libraries and Archives for additional action.
Mr. Dean produces no specific evidence that EKU withheld public records which it was statutorily required to create and/or retain. "In assessing the adequacy of an agency's 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.'" 95-ORD-96, p. 7, citing Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977). As University counsel amply demonstrates, EKU "made a good faith effort to conduct a search using methods that can reasonably be expected to produce the records requested." 95-ORD-96, p. 7. Ultimately, that search did not yield the records Mr. Dean believes to exist. 7 Our analysis, however, turns not on whether the fruits of the agencies' searches meet the requester's expectations, but whether they made a good faith effort to conduct such a search, and can then say, as unequivocally as the nonspecificity of the requests permit, that no additional responsive records exist. In the absence of evidence calling into question EKU's good faith, we conclude that the Open Records Act requires nothing more.
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 We do not address, but make note of, the potential implications of the Committee's failure to record minutes of actions taken at every meeting per KRS 61.835.
2 Ms. Harris alsoresponded to Mr. Dean's characterization of the Chief Justice/Committee Chair as custodian of the Committee's records for open records purposes, noting that he was advised on January 24, 2005, that University Counsel serves as official custodian of all University records. Mr. Dean's argument that the Committee Chair must fulfill this role was postulated on his reading of KRS 61.870(5), which states:
"Official custodian" means the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control.
We believe that Mr. Dean reads this definition too narrowly and that University Counsel may properly serve as official custodian of records for all University records if authorized to do so.
3 Mr. Dean's objections to the timeliness of EKU's response are unfounded. His request was submitted on August 30. The University responded on September 3. Three business days elapsed between the date of his request and the date of the University's response. No further inquiry is warranted.
4 KRS 61.878(1)(j) authorizes nondisclosure of "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
5 As a collateral issue, Mr. Dean complains that Mark Welker, Chief of the Eastern Kentucky University Police Department, failed to respond to his inquiry concerning this matter. We believe that the analysis set forth in note 2 is controlling on this issue. University counsel serves as official custodian of the University's records, and Mr. Dean's open records request, if his inquiry could be characterized as such, should have been directed to her. If it was not an open records request, neither Chief Welker nor the University had a statutory obligation to respond.
6 Records Series U0101 of the State University Model Records Retention Schedule provides that general correspondence, which the subject emails may properly be characterized as, should be retained no longer than two years. This disposition instruction lends itself to two interpretations, the first of which would permit destruction of the emails any time before two years have elapsed (the second interpretation would require retention of the emails for the full two year period). Under the first interpretation, the University's destruction of the email was consistent with the disposition instructions.
7 With reference to the creation of "reports" or citations relating to the alleged traffic violations, we refer the parties to KRS 431.015 restricting the issuance of citations by peace officers to misdemeanors committed in their presence.