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 Franklin County Public School District properly relied on KRS 61.872(6) and KRS 61.878(1)(k) and (l), incorporating 20 U.S.C. § 1232g and KRS 160.700, et seq., into the Open Records Act in denying State Journal intern Vicki Pettus' May 1, 2009, request to inspect:
1. School Communications - specifically letters, emails, memos, minutes of meetings, or other written directives from Jan. 1, 2009, to May 1, 2009, for teacher guidance in allowing students to leave classrooms in order to go to the restroom at the school;
2. All emails sent and received by Assistant Principal Karen Buzzard from April 24 to May 1.
For the reasons that follow, we find that the District failed to establish that Ms. Pettus' request places an unreasonable burden on it, and that any such burden that actually exists, exists by virtue of apparent records mismanagement. Nevertheless, we find that the records identified as responsive to numbered request one, as described, qualify for exclusion from public inspection by operation of KRS 61.878(1)(k) and (l) and the federal and state Family Education[al] Rights and Privacy Acts. Further, we find that the sampling of records identified as responsive to numbered request two, as described, qualify for exclusion from public inspection by operation of KRS 61.878(1)(i) and (j). In light of this decision, we believe it is incumbent on the District to conduct a search of its records, both paper and electronic, using methods that could reasonably be expected to produce all responsive records, and to make any nonexempt records, such as written policies that do not identify individual students, available for Ms. Pettus' inspection.
In its May 7, 2009, response, the District characterized Ms. Pettus' request as a "'blanket request' for 'any and all documents' containing particular names, words, or phrases or relating to a particular matter," asserting that it was not obligated to honor the request pursuant to KRS 61.872(6) as construed in 99-ORD-14. The District observed:
A review of the email correspondence from just one administrator at one school shows over 900 messages 1 during the time period covered by [the] request and this does not include paper correspondence, paper memos, minutes of meetings, or other written directives . . . .
It was the District's position that retrieval, review, and redaction of all the letters, emails, memos, minutes, and other written documentation prepared by all administrators in all schools in the District, as well as the central office, "would be nearly impossible."
Additionally, the District expressed the belief "that many documents which may be responsive . . . would relate to bathroom privileges for particular students with medical needs, or to particular students who have been determined to violate restroom privileges, or other specific instances regarding student use of restrooms during class time." In support, the District cited KRS 61.878(1)(a), (k), and (l) as well as FERPA, KFERPA, and the Health Insurance Portability and Accountability Act. With regard to "[o]ther intraagency correspondence which may exist which relates generally to the issue of student restroom privileges," and records responsive to Ms. Pettus' second numbered request, the District invoked KRS 61.878(1)(i) and (j), asserting that they were "not intended to give notice of final agency action." In supplemental correspondence directed to this office following commencement of The State Journal's appeal, Attorney Robert L. Chenoweth reaffirmed the District's position, adding that:
[R]ecords which may be covered by the requests from The State Journal have been destroyed by direction from the Kentucky Department of Education, which maintains the webmail system through which public school employees send and receive email. Only messages which may have been pulled for retention in some other specific file location might still be in existence, and it is unknown whether any such records exist. 2
Because the record on appeal does not support the District's invocation of KRS 61.872(6), we cannot affirm its denial of The State Journal's request. Although the sampling of records extracted by the District in response to the request, as described, enjoy protection under one or more of the cited exceptions, the District is not relieved of its duty to conduct an adequate search of all paper and electronic folders that could reasonably be expected to yield responsive records, and to disclose to The State Journal any nonexempt records thus located. Accord, 04-ORD-028.
In rejecting the agency's attempts to impose requirements on an open records request over and above those requirements found at KRS 61.872(2), 3 the Kentucky Supreme Court recently determined that the referenced statute "only requires that one seeking to inspect public records . . . submit a written application 'describing the records to be inspected.'"
Department of Corrections v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008). In Chestnut, the requester sought access to a "copy of [his] inmate file excluding any documents that would be considered confidential." The Court determined that Chestnut's request satisfied the standard found at KRS 61.872(2), concluding that the request "was adequate for a reasonable person to ascertain the nature and scope of [his] open records request." Id. In so holding, the Court noted that he was required to do nothing more than describe the record sought, and "likely could not have done anything more because he could not reasonably be expected to request blindly, yet with particularity, documents . . . he had never seen." Id.
Like the Department of Corrections in Chestnut, the Franklin County Public School District attempts to characterize The State Journal's request as a "blanket request," lacking particularity, the fulfillment of which would impose an unreasonable burden. We reject this position, in light of the holding in Chestnut, as to both the specificity of the request and the extent of the burden on the District. The State Journal seeks documentation on a single topic, student restroom privileges, for a discrete period of time, one month to five months. Given the limited scope of the request and the Supreme Court's recent declaration that "the obvious fact that complying with an open records request will consume both time and manpower is, standing alone, not sufficiently clear evidence of an unreasonable burden, " id. at 665, we find that The State Journal's request was adequate and the burden imposed on the District not unreasonable.
In Chestnut, the Court observed that "a public agency refusing to comply with an open records request on this unreasonable burden basis faces a high proof threshold since the agency must show the existence of the unreasonable burden 'by clear and convincing evidence.'" Noting that the affidavits submitted by DOC were "not particularly convincing because they [were] vague on the subject of how much time it takes to comply . . .," the Court nevertheless stated that it was "satisfied that the task of determining what materials are properly subject to an . . . open records request is tedious and time-consuming work," but that it was not persuaded that the request "automatically constitute[d] an unreasonable burden. " Id. at 664. Continuing, the Court determined that the "winnowing process required of the DOC," to separate excepted materials and make nonexcepted materials available did not "rise to the level of an unreasonable burden under KRS 61.872(6)," inasmuch as this is an existing statutory obligation under KRS 61.878(4). 4 Id. at 665; accord, 08-ORD-231; 09-ORD-002; 09-ORD-012.
Additionally, the Court declared that "[a] record's length, standing alone, is an insufficient reason to exempt it from open records disclosure, " and therefore does not provide a basis for refusing "to comply with an otherwise valid open records request." Id. at 666. Nor, the Court concluded, did the agency's "method of organizing its files . . . ." Id. In sum, the Court held that an agency "should not be able to rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request." Id. citing KRS 61.8715 (stating that "to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes").
Because The State Journal's request "was adequate for a reasonable person to ascertain its nature and scope," as evidenced by the District's ability to locate a "sampling" of responsive records, the District cannot persuasively argue that the description was inadequate under the Chestnut standard. Because it failed to produce evidence, clear and convincing or otherwise, to supports its claim of an unreasonable burden, the District cannot substantiate its invocation of KRS 61.872(6).
Nevertheless, as described, the "sampling" of responsive records extracted by the District in its cursory search are shielded from public inspection by operation of KRS 61.878(1)(k) and (l), 5 incorporating the confidentiality provisions of the federal and state Family Education[al] Rights and Privacy Acts into the Open Records Act. Both the federal and state acts preclude the disclosure of personally identifiable student information to third parties in the absence of a parent or eligible student's prior written consent. The Kentucky Supreme Court, and this office, have recognized that FERPA, and its state counterpart, operate as a bar to disclosure of education records, expansively defined at 20 U.S.C. § 1232g(4)(A) as "those records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution."
Hardin County Schools v. Foster, 40 S.W.3d 865 (Ky. 2001); 99-ORD-217; 08-ORD-052. FERPA restricts access to "education records (or personally identifiable information contained therein) . . ." on pain of withdrawal of federal funds. Among the definitions of "personally identifiable information" found at 34 CFR § 99.3 is "[o]ther information that would make the students identity easily traceable." Clearly, communications concerning the medical needs of particular students and abuse of restroom privileges by particular students contain information directly related to a student or students. Because they are maintained by the District, these records are excluded from public inspection.
So too are the communications, as described, exchanged by Assistant Principal Buzzard, and parents, other teachers, and administrators to the extent those communications were not adopted as part of the final action in the matters to which they relate.
City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982);
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953 (1983);
University of Kentucky v. Courier-Journal and Louisville Times Co., 830 S.W.2d 373 (1992),
Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001); 00-ORD-168; 06-ORD-061. It is well established that public records that are preliminary in nature forfeit their exempt status only if they are adopted by the agency as part of its final action. ("If the Chief [of Police, as final decision-maker] adopted [Internal Affairs', as fact finder] notes and recommendations as part of his final action, clearly the preliminary characterization is lost to that extent" City of Louisville at 659; "Once such notes or recommendations are adopted by the [agency] as part of its actions, the preliminary characterization is lost," and "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" Board of Medical Licensure at 956, 957; "Investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action" University of Kentucky at 378.) The District maintains that "no correspondence was found [in the course of its admittedly limited search] which constitutes mere correspondence between agency staff which was not of a preliminary nature; or which constituted a request by a private individual for the agency to take particular action; or which constituted final notice of School District action on any issue." Under these circumstances, we affirm the District's decision to withhold the sampling of records extracted from Assistant Principal Buzzard's communications.
Having rejected the District's characterization of The State Journal's request as unreasonably burdensome, we find that the District is statutorily obligated to conduct a search for all responsive records, "regardless of physical form or characteristics," 6 using methods that could reasonably be expected to produce those records, and to disclose any nonexempt records so located to The State Journal. In 06-ORD-022, the Attorney General determined that the search conducted by the Transportation Cabinet "did not employ 'methods which c[ould have] reasonably be[en] expected to produce the records requested,' 95-ORD-96, p. 7, and that a broader search was clearly warranted . . . ." 06-ORD-022, p. 9. At page 6 of that decision, 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.
Although the District did not describe the methods employed in conducting its search for records responsive to The State Journal's request, it acknowledged the limits of its search attributing its minimal efforts to the breadth and burdensome nature of the request. As noted, the Supreme Court rejected these arguments in Chestnut, above, noting that "the obvious fact that complying with an open records request will consume both time and manpower is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden, " and that an agency "should not be able to rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request." Id. at 666.
We therefore believe that it is incumbent on the District to expand its search to any paper files or .pst files stored on the network drive or personal drives of administrators or staff members who could reasonably be expected to maintain responsive records. Review of these files should be facilitated by the topical and temporal parameters established in The State Journal's request. Bearing in mind that "the winnowing process requested of the [agency] . . .does not rise to the level of an unreasonable burden . . . especially in light of the fact that the General Assembly has already mandated that all public agencies . . . must separate materials exempted from disclosure in a document from materials that are subject to disclosure. " Id. at 666. The records produced as a result of this search can then be reviewed for information protected by KRS 61.878(1)(k) and (l), incorporating FERPA and KFERPA, as well as information protected by KRS 61.878(1)(i) and (j) as nonfinal. The remainder, including any guidance or policy directives relating to student restroom privileges not identifiable of individual students, must be disclosed to The State Journal.
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.
Distributed to:
Katheran WassonHarrie Lynne BueckerRobert Chenoweth
Footnotes
Footnotes
1 Although it is unclear whether this number reflects both email sent and email received, the presence of 900 emails in an individual user's account is indicative of a failure to properly manage and maintain that account thus impeding public access to nonexempt email in contravention of KRS 61.8715 and Chapter 171 of the Kentucky Revised Statutes.
2 As noted above, and more fully explicated below, it is incumbent on the District to conduct a search of these "file locations" to determine if additional responsive records exist that relate to student restroom privileges.
3 KRS 61.872(2) provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
(Emphasis added.)
4 KRS 61.878(4) provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
5 KRS 61.878(1)(k) and (l) authorize public agencies to withhold:
(k) All public records or information the disclosure of which is prohibited by federal law or regulation;
(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.