Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Bullitt County Public School District violated the Kentucky Open Records Act in the disposition of Linda Lewis' request for a copy of the results of "the investigation Susan Bibelhauser conducted as a result of my letter to [Superintendent] Keith Davis[,]" including "responses from all parties Susan interviewed." Insofar as the District failed to cite a statutory exception and briefly explain how it applies to the records belatedly withheld, the District violated KRS 61.880(1). Because Ms. Lewis is a former employee of the District, and she initiated the subject investigation by filing a formal complaint, KRS 61.878(3) entitles her to access the investigatory records that relate 1 to her notwithstanding their preliminary nature. In sum, the District's response was both procedurally deficient and substantively incorrect.
On June 9, 2009, Ms. Lewis directed her "formal request" via e-mail to Becky Sexton, Assistant Superintendent for Support Services. 2 Having received no response, Ms. Lewis directed another e-mail to Ms. Sexton on June 16, again requesting "to receive the results of the investigation" conducted by Ms. Bibelhauser as a result of her May 1 letter to Mr. Davis. Two days later, Ms. Lewis directed yet another e-mail to Ms. Sexton, advising that she had spoken with Ms. Bibelhauser "several times and she emailed" her on June 4, to let her know that "she had completed the investigation and was forwarding" the request to Ms. Sexton. In closing, Ms. Lewis noted that she had "a list of the parties interviewed for [her] investigation" and that she "would appreciate complete results of the findings." On June 19, Ms. Sexton advised Ms. Lewis via e-mail that she was "in receipt" of her "correspondence" and would be sending her "information regarding the conclusions of the report completed by Ms. Bibelhauser" by June 23; however, as of June 24, Ms. Lewis had received nothing in the mail. Accordingly, Ms. Lewis initiated this appeal by letter of the same date, noting that she had "requested four times at least, by email and over the phone, the results of the investigation," and requesting assistance in obtaining "a full and complete investigation report from the [District]." 3
Upon receiving notification of Ms. Lewis' appeal from this office, Eric G. Farris, counsel for the Bullitt County Board of Education, responded on behalf of the District, initially advising that "it is appropriate to direct all Open Records Requests to the Superintendent of the Bullitt County Public Schools as the official custodian of all public school district records." 4 According to Mr. Farris, the District normally "redirect[s] or otherwise respon[ds] to requests that are sent to employees of the [District] other than the Superintendent" as required; however, in this case, the Assistant Superintendent to whom the e-mail of June 9, 2009, was directed, Ms. Sexton, "had been involved in a serious automobile accident and was out of the office for several weeks." As a result, Ms. Lewis' e-mail "did not receive the attention that it normally would have." Enclosed with Mr. Farris' response is a copy of the letter that Ms. Sexton directed to Ms. Lewis on July 6, 2009, in which Ms. Sexton advised Ms. Lewis that her complaint "was investigated, but the matter was not finalized since Ms. Bibelhauser had not been able to interview [her]. At this point, although administration has taken steps toward addressing concerns, no final action has been taken." 5 As Mr. Farris observed, the "bottom line response to Ms. Lewis' request is that the investigation sought by Ms. Lewis is an incomplete and pending matter, and thus not subject to Open Records release at this time." In our view, this response is both procedurally and substantively deficient.
As a public agency, the District must comply with procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) contains the procedural guidelines which a public agency must follow in responding to requests. In relevant part, KRS 61.880(1) provides:
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. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.
(Emphasis added). In construing the mandatory language of this provision, the Kentucky Court of Appeals observed that "[t]he language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance."
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996).
By its mandatory terms, KRS 61.880(1) requires public agencies to issue a "detailed and particular" written response within three business days of receiving a request. In general, public agencies cannot postpone this deadline. 04-ORD-144, p. 6. "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). As the Attorney General has frequently noted, this is a "fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1)." 01-ORD-140, p. 3. Although the District admittedly failed to provide a timely written response, Ms. Sexton did respond to Ms. Lewis' e-mail (her chosen method of correspondence) of Thursday, June 18 (apparently sent after the close of business), in a timely manner when she received it on Friday, June 19, indicating that records would be available 6 by June 23, or within three business days, and Ms. Lewis also failed to comply with KRS 61.872(2), by submitting a written request as previously indicated. Also, the District has now explained the unforeseen circumstances which resulted in this delay, and further indicated that e-mails are normally redirected or forwarded to the correct individual for a response when appropriate or necessary. In the absence of any evidence of bad faith, and in light of these mitigating factors, including Ms. Lewis' failure to comply with KRS 61.872(2), and Ms. Sexton's timely response upon actual receipt of her e-mails, the Attorney General finds no violation of the Act in this regard aside from the failure of the District, without any explanation, to provide the records on the date originally specified or satisfy its burden of proof in a written response denying or postponing access.
Although not dispositive on these facts, given our conclusion relative to KRS 61.878(3), noticeably absent from the responses ultimately provided on behalf of the District are both a citation to the applicable statutory exception and the requisite brief explanation of how that exception applies in this case. Public agencies must cite the applicable exception, and provide a brief explanation of how that exception applies to the records, or portions thereof withheld per KRS 61.880(1) in order to satisfy the burden of proof imposed by KRS 61.880(2)(c). 04-ORD-106, p. 6. As the Attorney General has often recognized:
While neither 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 [a public agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106. Similarly, this office has observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2.
Although Ms. Sexton responded in a timely fashion upon receiving Ms. Lewis' appeal, her response lacked the specificity envisioned by KRS 61.880(1); the supplemental response of the District was equally lacking. 7 Bearing in mind that public agencies like the District have the burden of proof in denying requests under KRS 61.880(2)(c), and that KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents," this office must conclude that both of the responses ultimately issued on behalf of the District were procedurally deficient.
Edmondson v. Alig, supra at 858; See 97-ORD-170. In responding to future requests and appeals, the District should be guided by the longstanding principle that procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. Based upon the following, this office also finds the District's ultimate disposition of Ms. Lewis' request substantively incorrect.
Resolution of the instant appeal turns upon the language of KRS 61.878(3), which provides:
No exemption of this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy and records including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant or eligible, shall not have the right to inspect or copy any examination or documents relating to ongoing criminal or administrative investigations by an agency.
As with any decision involving statutory interpretation, our duty "is to ascertain and give effect to the intent of the General Assembly."
Beckham v. District of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing
Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). In discharging this duty, the Attorney General is at liberty to neither add to nor subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id. To the contrary, this office must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated.
Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). In so doing, the Attorney General "must construe all words and phrases according to the common and approved uses of language."
Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997).
In construing this provision, the Attorney General has long recognized:
This statute has been referred to as the "exception to the exceptions" to the Act, and provides public employees with the right to inspect records relating to them. 93-ORD-19. . . . When applicable, KRS 61.878(3) overrides all of the exemptions to public inspection set forth in KRS 61.878(1) with the exceptions of KRS 61.878(1)(k), pertaining to records or information the disclosure of which is prohibited by federal law or regulation, and KRS 61.878(1)(l), pertaining to records or information the disclosure of which is prohibited, restricted, or otherwise made confidential by enactment of the General Assembly. In addition, public employees do not have a right to inspect examinations or documents relating to ongoing criminal or administrative investigations by an agency. 95-ORD-97; 96-ORD-27.
95-ORD-97, p. 4; 98-ORD-114. As a threshold matter, by its express terms KRS 61.878(3) applies to public agency employees, applicants for public employment, and eligibles on a register. Although the provision does not contain a specific reference to former public employees, the Attorney General has recognized "that its expansive wording, coupled with the statement of legislative intent underlying the Open Records Act, codified at KRS 61.871, that free and open examination of public records is in the public interest, and the rule of statutory construction, codified at KRS 446.080(1), that all statutes are to be interpreted with a view to promote their objects and carry out the intent of the legislature, compel this result." 97-ORD-87, p. 3.
In 97-ORD-87, this office reasoned that the "obvious purpose of the 1992 amendment to KRS 61.878(3) was to broaden the scope of the provision to [ensure] that all public employees, not just state employees governed by Chapter 18A of the Kentucky Revised Statutes, enjoyed an equal right of access to records relating to them." Id. Any other interpretation of this provision "'is clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the Kentucky Open Records law.'" 97-ORD-87, p. 3, quoting
Frankfort Publishing Company, Inc. v. Kentucky State University Foundation, Inc., Ky., 834 S.W.2d 681, 682 (1992), citing
Kentucky Tax Commission v. Sandman, 300 Ky. 423, 189 S.W.2d 407 (1945). In our view, it was "simply inconceivable that the legislature intended to endow applicants for public employment with a broader right of access to records relating to them than former public employees. " 97-ORD-87, p. 3. In accordance with 97-ORD-87, a copy of which is attached hereto and incorporated by reference, this office concludes that KRS 61.878(3) clearly applies to Ms. Lewis. A contrary reading of KRS 61.878(3) "is inconsistent with the tenor of that provision as well as the expressed legislative intent and policy of the Act as a whole." Id., p. 4.
As a former public agency employee, Ms. Lewis is endowed with a broader right of access to records relating to her than the general public has to those same records. Even records which would otherwise be shielded from disclosure as preliminary drafts or notes pursuant to KRS 61.878(1)(i), or as preliminary recommendations or memoranda in which opinions are expressed pursuant to KRS 61.878(1)(j), as to third persons, must be made available to Ms. Lewis if those records relate to her. However, there are exceptions to this broad right of access; a public agency employee (including an applicant for employment) is not entitled to inspect records or information the disclosure of which is prohibited by federal law or regulation (KRS 61.878(1)(k)), or records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly (KRS 61.878(1)(l)). Here, the District has not invoked KRS 61.878(1)(k) or KRS 61.878(1)(l), nor is there any indication that either provision applies; likewise, no "examination" has been requested. Accordingly, Ms. Lewis is entitled to a copy of any record that relates to her, including the investigatory records in dispute, in the absence of an ongoing criminal or administrative investigation.
Although the right of access granted to public agency employees (current and former) by KRS 61.878(3) overrides the remaining exceptions codified at KRS 61.878(1) when the employee requests access to records that relate to her, the concluding sentence of KRS 61.878(3) suspends this right while the employee is the subject of an ongoing investigation. 98-ORD-114; 93-ORD-74; 93-ORD-37. Said another way, KRS 61.878(3) generally requires a public agency to release otherwise exempt records to a public agency employee; however, "where the employee is under investigation and the documents relate to that investigation, the request can properly be denied." 95-ORD-97, p. 2. In contrast, the Attorney General has recognized "that a public agency employee is entitled to review records relating to administrative investigations which he or she initiated. " Id. Such is the case here. In 93-ORD-19, this office held that a public agency employee could inspect handwritten notes generated by the agency's affirmative action officer during the course of investigating a formal complaint filed by the employee though the notes were otherwise protected under KRS 61.878(1)(i). See 95-ORD-97. Likewise, in 93-ORD-24, this office reaffirmed 93-ORD-19, holding that the agency had improperly withheld handwritten notes taken by an officer of the agency during an investigation of a complaint filed by the employee to whom the notes related. See 95-ORD-97.
Because Ms. Lewis initiated the subject investigation by filing her formal complaint, as opposed to being the subject of the investigation, the analysis contained in 95-ORD-97 (also distinguishing between "investigation," as used in KRS 61.878(3), and "adjudication," as used in KRS 61.878(1)(h)) is controlling; a copy of that decision is attached hereto and incorporated by reference. As a former public agency employee, Ms. Lewis is entitled to inspect or copy those preliminary documents that were generated in the course of investigating her complaint, and that "relate to" her within the meaning of KRS 61.878(3). To hold otherwise would contravene the mandatory language of this provision as well as prior decisions of this office, including 97-ORD-87 and 95-ORD-97.
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:
Linda LewisKeith DavisEric Farris
Footnotes
Footnotes
1 In 05-ORD-181, this office interpreted "relates," for purposes of KRS 61.878(3), as follows:
The term "relate" is defined as having "connection, relation, or reference," The American Heritage College Dictionary, 1173 (4th ed.), and does not always require a specific reference in the form of a name. To the extent that the contents of the [records] relate to the Sheriff, his office, and his employees, he and his employees are entitled to inspect and obtain a copy of it. The mandatory stricture found at KRS 61.878(3) overrides any otherwise applicable exception, including KRS 61.878(j), to compel disclosure of the letter and supporting documentation.
Id., p. 7.
2 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.
Given the express language of this provision, the District could have required Ms. Lewis to submit her request in writing; e-mail is not a permissible method of delivery under the Open Records Act. However, the District implicitly waived this argument in ultimately responding via e-mail without comment.
3 To the extent no such "report" currently exists, and will not until the investigation is completed, the District is not expected to comply with Ms. Lewis' request; a public agency cannot produce a nonexistent record for inspection or copying. See 07-ORD-190 and 07-ORD-188.
4 This position is consistent with KRS 61.872(2); however, this office assumes that in so arguing the District has complied with KRS 61.876 by adopting rules and regulations concerning public records, including such information as the "title and address of the official custodian of the public agency's records," and posting a copy "in a prominent location accessible to the public."
5 In so arguing, the District presumably relied upon KRS 61.878(1)(i) and/or (j), pursuant to which specified "preliminary" documents may be withheld unless and until adopted as the basis for any final action by the agency. See 07-ORD-090; 04-ORD-187. However, KRS 61.878(3) specifically provides that public agency employees (construed to include former employees) are entitled to "preliminary and other supporting documentation that relates" to them.
6 Neither Mr. Farris nor Ms. Sexton offer any explanation of why Ms. Lewis was given this information only to have the District later deny access entirely.
7 If the District wished to delay access, it was required to invoke KRS 61.872(5), the only exception to KRS 61.880(1), and provide a detailed explanation of the cause for delay as well as the specific date when the records would be available, none of which the District attempted.