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 actions of the Kentucky Department of Education relative to the November 7, 2006, request of Peggy Washington for a copy of "all communications, computer generated e-mails, blind copies hand written messages, related to Peggy Washington, Interim Review, Evaluation, Termination, Transfer, Lincoln Co., Owen Co., etc. from 9/2003 - 11/2006," addressed to and from 27 listed Department of Education employees, and thirteen other categories of records relating to Ms. Washington's employment history, personnel records, performance evaluation process, and employment and personnel records of other Department employees.
By letter dated November 13, 2006, Kevin C. Brown, Assistant General Counsel, responded to Ms. Washington's request on behalf of the Department, advising:
We are in the process of ascertaining whether documentation exists that is responsive to your request. Because this request is voluminous, and because this documentation, if any, is located within numerous files, KDE will require additional time to complete this request. We anticipate that we will be able to fully respond to your request on or before November 27, 2006. . . .
By letter dated November 29, 2006, Mr. Brown provided a second response to Ms. Washington, advising again that the because of the voluminous nature of her request and because the records, if any, were located within numerous files and included documentation that may only exist within Department archives which is maintained at the Department of Library and Archives, requiring significant time and resources to retrieve, the Department would need additional time, until December 15, 2006, to fully respond to her request. In the interim, he advised Ms. Washington that she would be provided with a complete copy of her personnel file, containing several documents she had requested, at no charge to her, on or before December 5, 2006.
By letter dated November 30, 2006, Mr. Brown provided a third response to Ms. Washington enclosing a complete copy of her personnel file, indicating that it contained several documents responsive to her request, including the "Copy of Performance Plan for Peggy Washington, 8/2005."
By letter dated December 7, 2006, Mr. Brown provided a fourth response to Ms. Washington advising her that the Department had compiled 493 pages of records responsive to her request which would be made available to her and advised that it was anticipated that the remainder of the records she had requested could be sent to her in two additional installments on or before December 15, 2006.
By letter dated December 15, 2006, Mr. Brown provided a fifth response to Ms. Washington advising her that the Department had compiled an additional 320 pages of records responsive to her request, which would be made available to her upon payment of copying expenses of $ 32.00 (10 cents/page). The Department further advised Ms. Washington that the portion of her request which included the terms "all communications," "related to" and "etc.," was an open ended request and it did not describe the records requested with enough specificity to allow the Department to identify and locate records that may be responsive to her request, and therefore, denied this portion of her request. The Department explained that she could resubmit her request and provide specific descriptions of records she was seeking, including the type of document she was seeking. In addition, the Department stated that records described in her request regarding "Kevin Brown" and "Kevin Noland" were exempt from disclosure pursuant to the attorney-client privilege and/or exempt as attorney work product, under authority of KRS 61.878(1)(l), KRS 447.154, KRS 411A.0503, KRE 503.
On December 20, 2006, in light of the large volume of records involved in Ms. Washington's request and the fact that the Department had provided her with over 800 pages of records, this office sent a letter to Ms. Washington asking her to identify those records that she had requested and felt she had not received and an explanation for her position.
In her response, faxed to this office on December 26, 2006, Ms. Washington challenged the Department's position that her request for "all communications" "related to Peggy Washington" "etc.," "from 9/2003 - 11/2006 addressed to and from" 27 named Kentucky Department of Education employees was too broad and open-ended. She argued that the request was limited to subject matter, date and parties.
Ms. Washington further advised that the Department had informed her that some of the requested records were available or were being collected but these requests had not been honored to date and that the Department had provided her with some records for certain categories of her request, but omitted certain records from the categories.
Because the Department provided Ms. Washington with copies of over 630 additional documents responsive to her request after her December 26, 2006, response to our letter of December 20, 2006, we asked, by letter dated February 5, 2006, that she again identify the records that remained in issue.
By response dated February 11, 2007, Ms. Washington acknowledged the Department's denial that her request for "all communications" "related to Peggy Washington" "etc.," "from 9/2003 - 11/2006 addressed to and from" 27 named Kentucky Department of Education employees was being appealed and advised that the following requests had not been honored: 1
[1] Copy of all attachments/documents viewed by Ms. Star Lewis and used in her reconsideration of Peggy Washington's 2005 Year End Evaluation.
Department's December 15, 2006, Response:
A copy of your personnel file was tendered to you on November 30, 2006 and is responsive to this request as it contains records of your employment history with KDE, including a copy of your 2005 Evaluation, all available for review by Ms. Lewis during evaluation process. No other documentation exists that is responsive to this request.
[2] Copy of all documentation, notes used by Nijel Clayton in the total evaluation of 2004 & 2005 for Peggy Washington.
Department's December 15, 2006, Response:
A copy of your personnel file was tendered to you on November 30, 2006 and is responsive to this request as it contains records of your employment history with KDE, including a copy of your 2005 Evaluation, all available for review by Ms. Clayton during the evaluation process. No other documentation exists that is responsive to this request.
[3] Copy of documentation; notes of Nijel Clayton used in determining the criteria, results; conclusions of Peggy Washington's 1st and 2nd Interim Review, 2005.
Department's December 15, 2006, Response:
A copy of your personnel file was tendered to you on November 30, 2006 and is responsive to your request as it contains records of your employment history with KDE, including a copy of your 2005 Evaluation, which includes commentary regarding your 1st and 2nd Interim Reviews, all available for review by Ms. Clayton during the evaluation process. No other documentation exists that is responsive to this request.
[4] Copy of signatures on sign-in list/sheet and or record for attendance for all employees, on payroll, in the Division of Virtual High School for the 2006 Diversity Training and Sexual Harassment Training. (besides signatures, also list and identify each employee by name)
Department's December 15, 2006, Response:
A copy of documentation responsive to this request is available and consists of seven (7) pages. The portion of this request in parenthesis is a request for information as opposed to a request for specifically described records and therefore is denied. 02-ORD-213, 02-ORD-175.
[5] Copy of all documents, notes used by Linda Pittenger to assess the performance of Peggy Washington for the 2005 Year End Evaluation.
Department's December 15, 2006, Response:
A copy of your personnel file was tendered to you on November 30, 2006 and is responsive to this request as it contains records of your employment history with KDE, including a copy of your 2005 Evaluation, all available for review by Ms. Pittenger during the evaluation process. No other documentation exists that is responsive to this request.
[6] Copy of 2005 and 2006 personnel attendance report for Libby Taylor, Mary Jo Rist, Linda Johnson, Terri DeYong, Kim Bickers, Nijel Clayton, Linda Pittenger, Jim Beward, Star Lewis, Debbie Powers, and Tom Welch.
Department's December 15, 2006, Response:
Copies of documentation responsive to this request were provided to you on December 12, 2006.
Ms. Washington asserts that the following requests had not been fully honored:
[1] List all dates between January 2004 and November 2006that Jill Hunter and Lynn McNear-McGowan met with Peggy Washington and provide copies of notes taken during the listed meetings.
Department's December 15, 2006, Response:
The first portion of this request for information as opposed to a request for specifically described records and is therefore denied. 02-ORD-213, 02-ORD-175. A copy of documentation responsive to the second portion of this request is available and consists of eight (8) pages.
[2] Copies of Kentucky Department of Education -- Employee Time Reporting and attached Application for Leave, Flex and Comp time from 4/06 to 11/06 for the following employees: [14 named individuals]
Department's December 15, 2006, Response:
A copy of documentation responsive to this request is available and consists of three hundred (300) pages.
We address first the procedural issue as to the timeliness of the Department's responses. KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days, and indicate whether the request will be granted. If the agency denies all or any portion of the request, it must "include a statement of the specific exception authorizing the withholding of the record," and briefly explain how the exception applies to the record withheld.
In general, a public agency cannot postpone or delay this statutory deadline. The burden on the agency to respond in 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). Unless the person to whom the request is directed does not have custody and 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. 93-ORD-134. If, on the other hand, the records are in use, in storage, or otherwise unavailable, 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 on which the public record will be available for inspection. " KRS 61.872(5).
Ms. Washington's request was received by the Department on Tuesday, November 7, 2006. The Department responded to the request on Monday, November 13, 2006. Friday, November 10, 2006, was a legal state holiday, the three day requirement excludes weekends and holidays. Accordingly, we find the Department timely issued its initial response within three days of its receipt as required by KRS 61.880(1).
In its initial November 13, 2006, response, the Department advised that due to the voluminous nature of her request and the fact that the requested records, if any, would be located in numerous files, it would need additional time to complete her request, but anticipated that it would be able to fully respond to her request on or before November 27, 2006. On November 29, 2006, the Department provided a second response to Ms. Washington, advising again that because of the voluminous nature of her request and because the records, if any, were located within numerous files, including some that may only exist at the Department of Library and Archives, requiring significant time and resources to retrieve, the Department would need additional time, until December 15, 2006, to fully respond to her request. At this time, the Department advised that it would provide her with a complete copy of her personnel file, containing several documents she had requested, at no charge to her, on or before December 5, 2006. On November 30, 2006, the Department provided a third response enclosing a complete copy of her personnel file. On December 7, 2006, the Department provided a fourth response advising that it had compiled 493 documents responsive to her request which would be made available to her upon payment of copying costs. On December 15, 2006, the Department provided Ms. Washington with a fifth response advising that it had compiled 320 additional documents responsive to her request which would be made available to her upon payment of copying costs. On January 3, 2007, the Department provided Ms. Washington with a sixth response advising that it was providing her, at no charge, with 310 records responsive to her request for Nijel Clayton's personal files and documents maintained regarding Ms. Washington.
Based on the forgoing, we do not find that the Department intended to subvert the intent of the Open Records Act by failing to respond in a timely fashion or unduly delay access to records responsive to her request. The Department explained that the delay in providing the records requested resulted from the voluminous records involved and implicated by her request, involving files of over 30 Department employees, some of which may be located at the Department of Library and Archives. The Department timely responded to Ms. Washington's initial request and provided her with a date, November 27, 2006, later extended to December 15, 2006, in which she could expect to receive the documents requested and provided her with periodic updates and installments of copies of records responsive prior to that date. In addition, through cooperation between the parties, the Department provided additional copies of records that remained in issue on January 3, 2007. Accordingly, under these facts, we find no violation of the Act on this issue.
We address next the Department's denial of a portion of Ms. Washington's request as being overly broad. It is unclear from the record before us what records the Department has provided Ms. Washington in response to her request for "all communications, computer generated e-mails, blind copies hand written messages, related to Peggy Washington, Interim Review, Evaluation, Termination, Transfer, Lincoln Co., etc. from 9/2003 - 11/2006," to and from 27 listed Department of Education employees. In its December 15, 2006, response, the Department denied the request on the basis that it was an open ended request which included the terms "all communications," "related to" and "etc," it did not describe the requested records with enough specificity to allow the Department to identify and locate records that may be responsive to her request.
This office has previously criticized open-ended-any-and-all records-that-relate-type requests relating to a particular subject(s). 96-ORD-101; 99-ORD-14. In the latter decision, recognizing that KRS 61.878(3) provided public employees with access to records that relate to them, we stated:
KRS 61.878(3) has consistently been construed to vest public agency employees with a right of access to otherwise exempt public records which relate to them. It has not been construed to relieve public agency employees of the duty to describe those records with sufficient specificity to permit the agency from which the records are sought to identify, locate, and retrieve the records. Nor has it been construed to impose an additional duty on the agency to conduct an exhaustive exhumation of records or embark on an unproductive fishing expedition in order to satisfy a nonspecific request. A request for any and all records that contain a name, 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.
In 94-ORD-12, this office articulated a standard for determining whether a requester had described the records sought with sufficient precision. At page 3 of that decision, we observed:
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 89-81; OAG 91-58; 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.
Although we believe that Ms. Washington's description as to the requested records may have been specific enough to enable the agency to identify and locate at least some records responsive to her request, we affirm the Department's partial denial of Ms. Washington's request on the basis that it was an open ended request which included the terms "all communications," "related to" and "etc," and did not describe the requested records with enough specificity to allow the Department to identify and locate records that may be responsive to her request. Given the lack of specificity of the request, the Department would be required to review every record, regardless of physical form, which was prepared, owned, used, in the possession of twenty-seven (27) Department employees over a three year period to determine if any records responsive to Ms. Washington's request existed. If a requester cannot describe the documents she wishes to inspect with sufficient specificity to enable the agency to identify and locate records responsive to the request, there is no requirement that a public agency conduct an exhausted search for such material. 95-ORD-68. The Department advised Ms. Washington, in its December 15, 2006 response, that she could resubmit her request and provide specific descriptions of documents she was seeking and the type she was seeking. We encourage Ms. Washington and the Department to work toward an amicable solution of this dispute -- Ms. Washington by framing her request more narrowly and with more precision and the Department by working with her in a spirit of cooperation to locate the requested records.
Moreover, in the instant appeal, the Department's responses indicate that it has provided Ms. Washington with over 1,400 records. Ms. Washington asserts that many of the records provided are not responsive to her request. While it is apparent that the Department has expended considerable time and effort in order to satisfy Ms. Washington's request, these efforts have resulted in understandable confusion and misunderstanding, due in part to the volume and broad nature of the request. In its responses, the Department advised that some records responsive to Ms. Washington's request existed in her personnel file and provided her with the file. Ms. Washington argues that records responsive to her request were not in her personnel file. With respect to factual disputes of this nature between a requester and a public agency, the Attorney General has consistently recognized:
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. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully[,] any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-61, p. 2, citing OAG 89-81, p. 3. Accordingly, the parties should continue to consult and mutually cooperate to resolve any differences or misunderstandings related to the requested records.
The Department denied Ms. Washington's request for the 2005 and 2006 evaluations of three Department employees, under authority of KRS 61.878(1)(a). With rare exception, the Attorney General has affirmed public agency denials of open records requests for rank and file public employee evaluations. 02-ORD-197. We find no error in the Department's denial of Ms. Washington's request for the employee evaluations at issue, under authority of KRS 61.878(1)(a).
Finally, the Department, in its December 15, 2006, indicated that records described in her request regarding "Kevin Brown" and Kevin Noland" were exempt from disclosure pursuant to the attorney-client privilege and/or exempt as attorney work product, under authority of KRS 61.878(1)(l), KRS 447.154, KRS 411A.0503, KRE 503. Although the Department is certainly permitted to withhold those records that qualify for exclusion as confidential communications between attorney and client, the agency must identify the records being withheld and articulate its denial in terms of the privilege in order to satisfy its statutory burden of proof as to those records. 06-ORD-125. This office is not implying that the Department's reliance on the attorney-client privilege was misplaced, only that it failed to provide sufficiently detailed information to substantiate its position. The Department must identify the records being withheld and articulate its denial in terms of the privilege in order to satisfy its statutory burden of proof as to those records.
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. Washington's requests she asserts remain at issue are set out in italics. The Department's December 15, 2006 response and position as to each request follows.