Request By:
Martha L. May
Emily Dennis
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Juvenile Justice violated the Open Records Act in the disposition of Martha L. May's September 20, 2007, request for a copy of "all electronic or paper correspondence" relating to her that was generated by ten named employees during the course of her employment as nurse shift supervisor for Bluegrass Youth Development Center and following her resignation from that position. For the reasons that follow, we find that DJJ's disposition of Ms. May's request was procedurally deficient, substantively incorrect, and reflected an inadequate records search. Having failed to identify any harm to the agency that would result from the disclosure of correspondence relating to an investigation into "whether Bill May [Ms. May's husband and manager of DJJ's Information Systems] took any improper or unauthorized actions with respect to his wife's computer immediately before or after her resignation, " DJJ's reliance on KRS 61.878(1)(h) as the basis for denying her access to the records was misplaced. Having failed to locate correspondence relating to the closed investigation into a complaint that she filed, DJJ cannot be said to have conducted an adequate search for responsive records under the standard announced in 06-ORD-022.
By letter dated September 24, 2007, DJJ Ombudsman Nancy Birdsong notified Ms. May that "it will take additional time to retrieve any and all requested documents," and indicated that the records would be available "by October 22, 2007." On October 16, 2007, Ms. Birdsong issued DJJ's "final response" to Ms. May's September 20 request, 1 releasing some eighty-one pages of responsive correspondence, but withholding "some records . . . pursuant to KRS 61.878(1) [sic] relating to pending investigations by either a law enforcement agency or agencies involved in administrative adjudication. " 2 Shortly thereafter, Ms. May initiated this appeal questioning DJJ's reliance on KRS 61.878(1)(h) in partially denying her request.
In supplemental correspondence directed to this office following commencement of Ms. May's appeal, DJJ amplified on its position. Acknowledging its erroneous reference to KRS 61.878(1)(h) as KRS 61.878(h) and, more importantly, its failure to explain how that exception applies to the records withheld pursuant to KRS 61.880(1), as interpreted in
Edmondson v. Alig, 926 S.W.2d 856 (Ky. App. 1996), DJJ recognized that "a bare allegation that records are exempt due to a pending law enforcement or administrative investigation is an insufficient explanation under the Kentucky Open Records Act." In an addendum to its supplemental response, DJJ explained:
[O]ne of the records withheld from Mrs. May was an e-mail message sent Thursday, Sept. 9, 2007 from Michael E. Dossett to Ms. Birdsong regarding the fact that Nurse May and her husband, DJJ Information Systems Manager Bill May, came to the Bluegrass Youth Development Center the evening prior to Mrs. May's resignation for an unknown reason. Mr. and Mrs. May are currently aware of the investigation; however, no final agency action has been taken to date or a decision not to take action made, and release of any other records responsive to Mrs. May's request collected in the course of this investigation would harm the agency by premature release of information to be used in the administrative investigation.
Upon closer inspection of an additional seventy-one pages of responsive records, "unrelated to the ongoing investigation," DJJ elected to disclose redacted copies of those records, 3 but confirmed that "those records involving an internal investigation of actions taken by Mrs. May and her husband," were withheld in their entirety. 4
Unable to resolve the issues on appeal on the facts presented, the Attorney General subsequently exercised his prerogative, pursuant to KRS 61.880(2)(c), to "request additional documentation from the agency for substantiation." Specifically, we ask that DJJ describe, to the extent feasible without defeating the rationale for withholding the records, the nature of the investigation, to what end the investigation is being conducted, the current status of the investigation, and the search method employed in locating the responsive records. In addition, we asked that DJJ provide this office with copies of the records withheld for in camera inspection. 5
DJJ responded as follows:
The investigation stems from the timing of Mrs. May's resignation on September 5, 2007; a visit made by Mr. and Mrs. May to her workstation at the Bluegrass Youth Development Center after hours the evening of September 4, 2007; and the immediate removal of Mrs. May's desktop (computer) at 7:30 a.m. on September 6, 2007 by Mr. May's subordinate. The investigation entails a review of the contents of the computer to determine if there was any inappropriate content or transmissions on the computer.
DJJ further indicated that the investigation was being conducted for the purpose of "prospective law enforcement action or administrative adjudication" relative to "any improper or unauthorized actions" Mr. May may have taken with respect to his wife's computer, that the "computer contents are under review by the Office of the Ombudsman for the DJJ under directive of the former Commissioner and current Deputy Commissioner," and that the investigation is expected to be concluded by January 15, 2008. As for the search methods employed in locating responsive records, DJJ indicated that "[f]ollowing receipt of [the Attorney General's] November 27, 2007, correspondence, . . . paralegal Ellen Gotshall forwarded the letter to Bridget S. Brown, then DJJ Commissioner, Ronnie C. Ray, Director, Office of Investigations, and LaDonna Koebel, in house counsel for DJJ . . . ."
Finally, DJJ advised this office of the existence of additional records that are arguably responsive to Ms. May's request, namely, records generated in the course of a closed investigation arising from a complaint she filed with the Office of Investigations on September 18, 2007. DJJ disclosed these investigative records to the Attorney General for a determination whether the records should have been disclosed to her, but noted that if this office should affirmatively resolve this issue, DJJ would nevertheless be obliged to redact "all references to juveniles residing in DJJ facilities (including social security numbers and dates of birth, where applicable) pursuant to KRS 61.878(1)(a), KRS 61.878(1)(l), and KRS 610.340(1)(a)."
Having reviewed DJJ's responses to our inquiries, along with its supplemental responses, we conclude that its original response to Ms. May's request was procedurally deficient and that that deficiency was only partially remedied in supplemental correspondence directed to this office. Having reviewed the disputed correspondence relating to Ms. May's September 18 complaint and DJJ's investigation of Mr. May's activities following her resignation, we find inadequate proof in the record on appeal to sustain the agency's denial of this portion of her request. Finally, we find that the paucity of responsive correspondence produced, and DJJ's admitted failure to locate some responsive correspondence, is indicative of an inadequate search under the rule announced in 06-ORD-022.
DJJ acknowledges certain deficiencies in its original response to Ms. May's request, including its misidentification of the applicable exception and the terseness of its explanation of how that exception applies to the records withheld. These admissions of error, and references to governing authorities, obviate the need for a lengthy recitation of the procedural requirements of the law. We are, nevertheless, obliged to note that its original response was also deficient insofar as it did not contain a "detailed explanation" of the cause for the anticipated delay of thirty days in the disclosure of nonexempt responsive records. KRS 61.872(5) establishes the duties of public agencies in responding to requests for records which, because they are "in active use, in storage, or not otherwise available," cannot be produced for inspection within three business days. That statute provides:
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.
DJJ's statement that "it will take additional time to retrieve any and all requested documents," does not constitute a "detailed explanation of the cause" for delay. DJJ succeeded in producing the requested records one week earlier than the anticipated thirty day deadline. While we commend DJJ for producing the records with greater than anticipated alacrity, we remind the agency that KRS 61.872(5) requires it to state "the earliest date on which the public record will be available . . . ." (Emphasis added.) Given DJJ's failure to provide any explanation of the difficulties associated with locating, retrieving, reviewing, and producing for inspection the responsive records, and the fact that DJJ managed to produce them in a week's less time, we question whether the anticipated thirty day delay was reasonable.
Turning to the substantive issues in this appeal, we conclude that DJJ failed to meet its burden of proof in invoking KRS 61.878(1)(h) to deny Ms. May's request for certain responsive correspondence relating to whether her husband, manager of DJJ's Information System, "took any improper or unauthorized actions with respect to his wife's computer immediately before or after her resignation. " Having reviewed the disputed correspondence, we find insufficient proof to support its position that premature disclosure of the correspondence would harm the agency. KRS 61.878(1)(h) provides, in part, that the following public records may be excluded from public inspection.
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action[.] . . . The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
In construing KRS 61.878(1)(h), the Attorney General has repeatedly observed:
In order to successfully raise this exception, a public agency must satisfy a three-part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Unlike any of the other exceptions to public inspection, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884." The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests has been met.
95-ORD-95, pp. 2, 3; 97-ORD-93; 99-ORD-162; 00-ORD-196; 02-ORD-179.
Implementing this legislative mandate, in
University of Kentucky v. Courier Journal & Louisville Times Co., 830 S.W.2d 373 (Ky. 1992), the Kentucky Supreme Court analyzed a claim, advanced by the University, that records it compiled in the course of an NCAA investigation were exempt from disclosure under KRS 61.878(1)(h) . The Court reasoned:
This exemption applies only to law enforcement agencies or agencies involved in administrative adjudication. The University cannot seriously contend that it is a law enforcement agency. Moreover, the University itself, conceded that the NCAA, a private regulatory entity, is the only "agency" involved in "administrative adjudication. " Therefore, KRS 61.878(1)[(h)] would not apply.
University of Kentucky, at 377. Having failed to satisfy one part of the three part test found in KRS 61.878(1)(h), the Court rejected the University's claim.
Applying the same analysis, the Attorney General has rejected public agency reliance on KRS 61.878(1)(h) in a series of decisions. See 03-ORD-015 and authorities cited therein at pages 4 and 5. Given the requirement that the exemptions be strictly construed, codified at KRS 61.871, and the prohibition on agency custodians' use of KRS 61.878(1)(h) "to delay or impede the exercise of rights granted by KRS 61.870 to 61.884" contained in that exception, a public agency may only rely on KRS 61.878(1)(h) if it can clearly demonstrate that it satisfies each part of the three part test.
Assuming, arguendo , that DJJ can properly be considered an agency "involved in administrative adjudication, " and this is questionable in view of the fact that it has identified no specific statutory or regulatory violation into which it is conducting an investigation, it is by no means clear that these disputed emails were "compiled in the process of investigating" said violation(s). To the extent they contain information already disclosed in the September 6, 2007, email from Michael E. Dossett to Ms. Birdsong, which DJJ voluntarily released as an attachment to its November 13 supplemental response, the disputed emails can more properly be characterized as records tangential to the investigation, rather than records "actively, specifically, intentionally, and directly compiled as an integral part of a specific detection or investigation process," such as an investigator's notes. OAG 89-11, p. 4, cited in 03-ORD-015. Having reviewed those emails, we find little if anything in them that is indicative of "a specific detection or investigation process."
Moreover, DJJ has not articulated, nor can we infer, any harm to the agency that would result from the premature disclosure of the disputed emails. Given their similarity in content and tone to the September 6 email, referenced above, that DJJ voluntarily released, we do not believe that DJJ can meet its burden of proof in establishing harm. In OAG 89-11, this office held that the Jefferson County Police improperly relied on KRS 61.878(1)(h) in denying a newspaper reporter's request for tapes of radio transmissions between noon and 2:00 p.m. on January 10, 1989, during which time a police officer was killed. We focused not on the fact that these transmissions went out over public airwaves, but on the fact that "there must . . . be a showing that the agency would be harmed by premature release of information to be used in a prospective law enforcement action" . . . [, and] only a bare claim is made in such regard." OAG 89-11, p. 4. There, the county police explained:
The tape in question provides valuable information of an investigative and evidentiary nature in establishing the time frame of the entire incident and the movement and actions of the suspect. Release of the tape at this time, in the opinion of the department, would be detrimental to the criminal action against the suspect.
The Attorney General concluded that this statement did "not describe any harm to the agency" if inspection were allowed. OAG 89-11, p. 5; accord 98-ORD-31 (holding that the agency's bare claim of harm was "based on little more than supposition and conjecture" and that "there [was] no description of the harm that [would] occur if inspection [was] allowed").
As in the decisions cited above, resolution of this appeal turns on DJJ's failure to make an adequate showing that it would be harmed by premature release of the emails. This is particularly true in light of the fact that Mr. and Ms. May are aware of the investigation of their activities on the evening of September 4, 2007, that one or both of them are fully aware of the uses to which the computer at issue was put, and that the lion's share of the disputed email was generated by Mr. May or represent a response to his email. Given these observations, it is especially difficult to infer harm. Because DJJ is statutorily assigned the burden of proving harm through premature disclosure of the disputed emails, and none is shown, we find that DJJ improperly relied on KRS 61.878(1)(h) in denying this portion of Ms. May's request.
In addition we find that, to the extent that any responsive records were exchanged by the individual employees identified in Ms. May's open records request, DJJ erroneously withheld correspondence generated as a result of Ms. May's September 18, 2007, complaint to the Office of Investigations. DJJ ascribes its failure to locate and produce these records for inspection to the fact that, as of the date of the request, "the investigation was lodged with the Office of Investigation," and that it was not referred to the ombudsman's office until September 25. We are unable to discern the significance of this fact. DJJ also notes that the investigation was not closed until December 7, 2007. This fact has no bearing on Ms. May's request insofar as she was a public agency employee 6 who, by virtue of KRS 61.878(3) , was entitled to inspect and to copy "any record including preliminary and other supporting documentation that relates to [her]." 7 Clearly, her entitlement extends to the investigative records belatedly located. DJJ should therefore make these records available to Ms. May but may redact juvenile names, social security numbers, and dates of birth pursuant to the cited exceptions.
DJJ's failure to initially locate these investigative records, coupled with the paucity of emails produced in response to her request, raises an additional open records issue: the adequacy of its search for responsive records. In our November 27 request for additional information, we asked DJJ to "describe the search method employed to locate the responsive records." DJJ responded that upon receipt of our letter, "paralegal Ellen Gotshall forwarded the letter to Bridget S. Brown, then DJJ Commissioner, Ronnie C. Ray, Director, Office of Investigations, and LaDonna Koebel, in house counsel for DJJ . . . ." Although this response did not directly address the question we intended to pose, namely, what search method did Ms. Birdsong employ in her attempts to locate records responsive to Ms. May's September 20 request, our review of the records provided to this office for in camera inspection suggests that the employees identified in Ms. May's request conducted a limited search of their email inbox, sent items, and in some cases deleted items.
We do not believe that these searches satisfy the standard for electronic mail searches established in 06-ORD-022. A copy of that decision is attached hereto and incorporated by reference. At page 6 of 06-ORD-022, this office concluded that the Transportation Cabinet "did not conduct a search using methods that could reasonably be expected to produce the requested record." Continuing, we observed:
The Cabinet indicates that its search was confined to Dick Murgatroyd's personal folders. The Cabinet does not indicate that its search extended beyond these files to other folders. Because Mr. Murgatroyd might have saved the message in, for example, an archive file, a message file, a text file, or an html file, it was incumbent on the Cabinet to expand its search to any such file which could reasonably have been expected to produce the responsive record using broader criteria (words, topics) for that search. Moreover, because email is easily propagated, it was incumbent on the Cabinet to search the mail server to determine if the message was forwarded to Cabinet employees or officials, as well as the "inboxes" of employees or officials who might reasonably have been expected to receive it. Only a search of this scope could conclusively establish the existence or nonexistence of the responsive email on the Cabinet's system. The Cabinet's search, as described, was inadequate.
06-ORD-022, p. 6-7; accord 06-ORD-188. The record on appeal is devoid of any evidence of a search of this scope, and it therefore cannot be conclusively established that all responsive emails were located. Accordingly, we must conclude that DJJ's failure to produce the correspondence relating to Ms. May's September 18 complaint was, at a minimum, the consequence of an inadequate search that abridged Ms. May's right to inspect all nonexempt public records identified in her request in contravention of KRS 61.872, and that a more exhaustive search for emails relating to DJJ's investigation of her husband's activities might well have disclosed the existence of additional responsive 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 Misidentified as her September 30 request.
2 DJJ improperly instructed Ms. May to resubmit that portion of her request relating to correspondence generated by Brian J. Crall, then-Personnel Cabinet Secretary, to the Personnel Cabinet. DJJ has since acknowledged its error in misdirecting Ms. May, noting that it nevertheless maintains no such responsive correspondence. Given this admission of error, we will not unnecessarily lengthen this decision with a recitation of the agency's duty in these circumstances.
3 Although our review of these records suggests that these redactions were carelessly made, resulting in the presumably unintentional concealment of some nonexempt information, we find no error in DJJ's decision to withhold the specifically identified information for the reasons asserted.
4 In light of these subsequent disclosures, DJJ requested that this office "consider this appeal moot" pursuant to 40 KAR 1:030 Section 6. By letter dated November 27, 2007, we notified DJJ that we were "unable to comply with [this] request because DJJ did not release all responsive records to Ms. May" and that "40 KAR 1:030 Section 6 is therefore facially inapplicable." DJJ subsequently conceded this point.
5 KRS 61.880(2)(c).
6 Pursuant to 97-ORD-87, and subsequent decisions, Ms. May's status as a former employee does not alter her entitlement to these records.
7 Pursuant to 93-ORD-24 and 95-ORD-97, Ms. May is entitled to review records relating to investigations which she initiated, the concluding sentence of KRS 61.878(3) notwithstanding.