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 Explorium of Lexington violated the Open Records Act in the disposition of Dorothia L. Wilson's June 16, 2006, request to inspect:
1. All emails naming and/or pertaining to Aaron L. Wilson, AmeriCorps *VISTA Member, sent from [a specified email address] 1 to any user whose email address contains the domain "@carnegieliteracy.org", including, but not limited to Rachel Noble, Emily Webb, and Jan Isenhour;
2. All emails naming and/or pertaining to Aaron L. Wilson, AmeriCorps*VISTA Member, sent to [a specified email address] 2 from any user whose email address contains the domain "@carnegieliteracy.org", including, but not limited to Rachel Noble, Emily Webb, and Jan Isenhour;
3. The salary and complete personnel file of Sara Holcomb.
For the reasons that follow, we find that Explorium's actions in this regard were largely consistent with the requirements of the Open Records Act.
In addition to the records request that appeared in her original application, Ms. Wilson asked that Explorium "adopt rules and regulations which conform to the Open Records Act, and display these in a prominent location which is accessible to the public." She reminded Explorium of her right to conduct an onsite inspection of the records under KRS 61.880(1) as an alternative to receipt of copies of the records through the mail.
By letter dated June 18, 2006, Sara Nees Holcomb, Executive Director and Official Custodian of Records for Explorium, denied Ms. Wilson's request for email originating from, and/or transmitted to, the referenced email addresses on the basis of KRS 61.878(1)(i), misidentified as KRS 61.878(1)(l), asserting that said emails "constitute preliminary notes . . . excluded from inspection . . . [unless they] reflect final action. " On behalf of Explorium, Ms. Holcomb agreed to make available for inspection "from 10-5 Monday to Friday for thirty days starting June 28th, 2006," her salary and personnel file "with appropriate sections redacted," and "the email to Rachel Noble reflecting [Explorium's] final action with Aaron Wilson." She offered to mail the nonexempt documents to Ms. Wilson at a cost of $ 1.00, but left the decision, relative to the mode of access, to Ms. Wilson asking only that Ms. Wilson "let [Explorium] know . . . ."
Shortly thereafter, Ms. Wilson initiated this appeal, questioning Explorium's unexplained delay in affording her access to the requested records; Explorium's reliance on KRS 61.878(1)(i) and its "failure to inform [her] what emails are responsive to [her] request and briefly describe how the aforementioned exemption applied to each;" Explorium's silence on the issue of compliance with KRS 61.876(1), requiring public agencies to adopt and post rules and regulations governing open records access; and the "impermissible restriction on the hours of access" Explorium may have attempted to impose "by limiting the inspection to a starting time of, presumably, 10 a.m. EDT."
In supplemental correspondence directed to this office following commencement of Ms. Wilson's appeal, Explorium attorney C. Bradford Harris amplified on his client's position. With reference to the issue of timely access to the nonexempt records requested, he observed:
Ms. Wilson's open records request asked that the documents be made available by "the third business day." Explorium of Lexington's response letter, which was sent on the June 21, 2006, provided that Ms. Wilson was permitted to review the documents beginning on June 28, 2006. This time period gave Explorium of Lexington's limited administrative staff time to review the documents that had been requested, which included records of a personal nature (including Sara Holcomb's salary and personnel file) , and to redact any necessary information. Explorium of Lexington believes that given the type of records that were requested and its obligation to review to determine if any information needed to be redacted, the records were made available with a reasonable amount of time. Previous Attorney General Opinions have given public agencies a "reasonable time" to make documents available if the agency must separate exempt and non-exempt materials. See OAG 92-35.
With reference to the complaint concerning Explorium's reliance on KRS 61.878(1)(i) to withhold responsive emails, and its failure to specifically identify all such emails and explain how the cited exception applies to each, Mr. Harris advised:
Explorium of Lexington informed Ms. Wilson that all of the emails that she requested, with the exception of one, were not subject to public inspection because the emails were preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency pursuant to KRS 61.878(1)(i) and/or preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended pursuant to KRS 61.878(1)(j). The only email that was responsive to the open records request that reflected a final action of Explorium of Lexington was the email from Sara Holcomb to Rachel Noble that was identified in Explorium of Lexington's response letter and made available for inspection. In addition, Explorium of Lexington believes it would be unduly burdensome to require it to list every email and explain why it was exempt from disclosure under the same statutory provisions, since all of the emails, other than the one made available for inspection, were exempt for the same reasons.
With reference to Ms. Wilson's claim that Explorium may be impermissibly restricting hour of access by limiting inspection to a starting time of 10:00 a.m., Mr. Harris confirmed that 10:00 a.m. to 5:00 p.m. "are the regular business hours of Explorium . . . ." Mr. Harris did not respond to her complaint concerning Explorium's failure to comply with KRS 61.876(1).
In response to this office's KRS 61.880(2)(c) 3 inquiry, and request for production of the disputed documents for in camera inspection, Mr. Harris notified this office that Explorium did not withhold any information or records from Ms. Wilson, other than Ms. Holcomb's social security number, and that it was authorized to do so under authority of KRS 61.878(1))(a) as construed in OAG 76-717. Further, Mr. Harris advised, "Explorium is, and was at the time of Ms. Wilson's open records request, in compliance with KRS 61.876," noting that "[a] copy of the rules and regulations pertaining to public records is prominently displayed in Explorium's administrative office, which is accessible to the public during Explorium's regular business hours. " Finally, Mr. Harris provided this office with copies of the disputed emails for in camera inspection, reaffirming his client's view that "all of the emails in question, with the exception of one email, are not subject to public inspection" because they consist of "preliminary drafts, notes, correspondence with private individuals, preliminary recommendations, and preliminary memoranda." Having reviewed those emails, we fully concur.
Before proceeding to the substantive issue on appeal, we address the procedural issues Ms. Wilson raises. KRS 61.880(1) establishes a three business day deadline for agency response to an open records request, and production of the requested records on the same day, by providing:
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.
In construing this provision, the Attorney General has remarked:
"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).
02-ORD-61, p. 5. 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:
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.
(Emphasis added). Additionally, we note that in OAG 92-117 this office made 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.
Explorium's original response to Ms. Wilson's request was deficient insofar as it did not contain a detailed explanation of the cause for delay beyond the statutorily imposed three day deadline. This error was subsequently corrected when Explorium explained, in its supplemental response, that the additional seven days "gave [its] limited administrative staff time to review the documents that had been requested, . . . and to redact any necessary information." Having thus provided a detailed explanation of the cause for delay, and notified Ms. Wilson of the earliest date, time, and place for inspection, we affirm Explorium's disposition of Ms. Wilson's request. We do, however, remind the agency that KRS 61.872(5) envisions a statement of the earliest date and time for inspection, and that it should focus its efforts on insuring strict compliance with this provision in the event it cannot otherwise comply with the three business day deadline found at KRS 61.880(1).
The record on appeal does not support Ms. Wilson's claim that Explorium impermissibly restricted hours of access by permitting inspection from 10:00 a.m. to 5:00 p.m. These are, as Mr. Harris advises, Explorium's regular business hours, and the agency has not attempted to limit Ms. Wilson's right to inspect the requested records during these hours. KRS 61.872(3)(a) states that "[a] person may inspect the public records . . . [d]uring the regular office hours of the public agency [.]" Explorium makes its nonexempt public records available for inspection during its 10:00 to 5:00 business hours. The Open Records Act does not require more.
Given the factual dispute in the record on appeal, we cannot resolve the issue of whether Explorium is in compliance with KRS 61.876(1). That statute provides:
Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
Explorium indicates that the statutorily required notice of rules and regulations was, prior to Ms. Wilson's request, and is currently, on display in its administrative offices. Ms. Wilson responds that the notice was only posted after her appeal was filed. The Attorney General is not, in general, equipped to resolve a factual dispute of this nature, and we respectfully decline to do so. It is, however, clear, that Explorium should adapt the "model" notice utilized by the Lexington-Fayette Urban County Government, a copy of which Ms. Wilson furnished to this office in support of her position that said notice is deficient, to reflect its principal office and hours of operation and to identify its records custodian by title and address. Although the notice apparently developed by LFUCG provides a template for Explorium, it is incumbent on Explorium to make that template agency-specific.
Turning to the substantive issue in this appeal, we find no error in Explorium's partial denial of Ms. Wilson's request for emails originating from or transmitted to the referenced email accounts that name or pertain to Aaron L. Wilson. On this issue, the Kentucky Court of Appeals recently recognized that "emails which were exchanged between the mayor and the city council members were preliminary discussions involving what course of action should be taken in regard to a controversy . . . [and therefore] preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended . . . [which] were not subject to disclosure. " Baker v. Jones, Ky. App., S.W.3d (2006).
In 05-ORD-280, this office analyzed a series of recent decisions dealing with access to interagency email communications, contrasting the "conversational-type communications" at issue in 05-ORD-144, which were deemed to be "of a transitory nature, devoid of meaningful value to the agency" and consisting of "neither drafts, notes, or correspondence with private individuals, nor subjective expressions of opinion . . . [or] recommendation" with the emails at issue in 05-ORD-210 and 05-ORD-221. In the latter decisions, we affirmed, in part or in whole, agency denial of access to emails containing recommendations and opinions, concluding that the emails fell squarely within the parameters of KRS 61.878(1)(i) and (j). A copy of 05-ORD-280 is attached hereto and incorporated by reference.
Our review of the disputed emails confirms Explorium's position that they consist of drafts, notes, and interagency communications in which opinions are expressed, policies formulated, and recommendations made. Ms. Wilson enjoys no greater entitlement to inspect these records than any other member of the public, and we find no error in Explorium's decision to withhold them under the cited exemption as preliminary "tools which a public employee or officer uses in hammering out official action within the function of his office" rather than the official and final action itself. 4
Nor do we find any error in Explorium's decision to redact Sara Nees Holcomb's Social Security Number from the personnel and salary records otherwise disclosed to Ms. Wilson. We will not unnecessarily lengthen this decision with any analysis of the application of KRS 61.878(1)(a) to Social Security Numbers, but remind Ms. Wilson that the Kentucky Court of Appeals has characterized "these nine digits" as "no less than the keys to the information kingdom as [they] relate to any given individual." Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 838 (1994). The nonexistent public interest in disclosure of Ms. Holcomb's Social Security Number is clearly outweighed by her privacy interest. As for Ms. Wilson's belief that Explorium may have also withheld Ms. Holcomb's resume and/or application, we remind her that "this office cannot, with the information currently available, 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. 7. If Ms. Holcomb's personnel file contains a job application or resume, either or both should be produced for inspection after appropriate redactions are made. OAG 89-90; OAG 91-48; 00-ORD-137. If the file contains neither, Explorium's duties are fully discharged.
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. Wilson's request identified a particular email address belonging to an employee of Explorium of Lexington. We omit the employee's address in the interest of reducing unsolicited emails directed to that address.
2 See footnote 1 above.
3 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.)
4 With reference to Ms. Wilson's criticism of the specificity of Explorium's denial, we refer her to 97-ORD-41, p. 6, in which this office held:
[N]either this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied 415 U.S. 977 (1974). We believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted] . . . .
In the same decision, the Attorney General suggested that the agency "might characterize one or more of the records withheld as 'correspondence from [the agency's attorney] to the [agency] on questions pertaining to franchise renewal' and deny access on the basis of KRE 503 and KRS 61.878(1)(l) as privileged lawyer client communications." Id. p. 7. Consistent with this holding, we find Explorium's description of the group of responsive records implicated by Ms. Wilson's request, and its particularized justification for the withholding of same, sufficient under the Act.