10-ORD-029 | KOGC

Opinion

Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General

Open Records Decision

The question presented in these consolidated appeals 1 is whether the Scott County School District violated the Open Records Act in the disposition of Frank Lockwood's October 13, 2009, request for records relating to his child and legal actions undertaken on her behalf to insure her right to a free appropriate education while she was a student in the District. Based on recent authorities addressing the scope of public agency duties in responding to open records requests, we find that the District's disposition of Mr. Lockwood's request constituted a partial violation of the Act.

By way of background, in September 2006 the Attorney General issued an open records decision in which he found that the District partially violated the Act in responding to an earlier request submitted by Mr. Lockwood. The District appealed that decision. On April 14, 2008, the Scott Circuit Court entered an opinion and order in which it rejected the District's argument that the Kentucky Open Records Act is preempted by the federal Family Educational Rights and Privacy Act, thereby excluding education records from the Open Records Act. The Court held:

[T]he language within [FERPA and KFERPA] 2 that prohibits disclosure of the education records is completely separate from the language that assured parents access to their children's records. Therefore, the part of these Acts that assures parents access to their children's school records does not fit into one of the exceptions of either KRS 61.878(1)(k) 3 or (l), 4 they are included because they are records kept by a public agency and they are not specifically excluded to parents by this statute. This is consistent with the holding of the Kentucky Court of Appeals in Medley v. Board of Education of Shelby County, 168 S.W.3d 398, 404 (Ky. App. 2004), which stated that a teacher's request under the Kentucky Open Records Act for education records of a student "should not be considered as made by 'a member of the public.' Rather, [the teacher's] request should be judged in light of her position as a teacher. " FERPA and KFERPA include teachers in certain circumstances as an exception to nondisclosure of a student's education records.

Lockwood at 3, 4. (Emphasis in original.) Adopting the rule announced in U.S. v. Miami University, 294 F.3d 797, 811 (6th Cir. 2002), the Scott Circuit Court concluded that "federal and state laws can coexist when they do not conflict." Lockwood at 4.

Following a series of requests for records and agency responses, on October 13, 2009, Mr. Lockwood submitted a request in which he generally identified three records sets that had not previously been entirely fulfilled. The records sets consisted of:

1. [B]illing records related to [Robert L. Chenoweth's] work on the [U.S. Department of Education Office of Civil Rights] matter in March 2006 [and] any other record relating to Mr. Chenoweth's work on the OCR matter in March 2006.

2. [A]ny record, transcript, communication, email, letter, or other document which uses the word "investigation," "investigations," "investigator," "investigators," "investigate," "investigates," "investigating," or "investigated" to describe the investigation Mr. Chenoweth says he is now aware of.

3. [A]ll other records related to [Mr. Lockwood, his wife, and his child] which have not yet been supplied.

The District denied the request by letter dated October 16, 2009, asserting that the requested records did not exist, the request "lack[ed] the requisite specificity called for under the Open Records Act, " or both.

On November 17, 2009, Mr. Lockwood initiated these appeals, Open Records Log Number 200900432 and 200900433, in which he challenged the District's disposition of his request. He identified, albeit belatedly, the records to which he believed the District had improperly denied him access. Those records, and the District's supplemental discussion thereof, follow:

1. Record sought: A true[, unaltered,] and accurate recording of my child's March 12, 2007, ARC meeting;

District response: No other copy exists [other than the copy already released to Mr. Lockwood], and the District denies any alteration has been made.

2. Record sought: A true and accurate recording of my child's April 30, 2007, ARC meeting;

District response: Although Mr. Lockwood has previously received a copy of the recording, an additional copy will be mailed to him.

3.a. Record sought: A complete copy of my child's due process folder which has been in the possession of Director of Special Education Martin Hendrix;

District response: All records, with the exception of test protocols, have been provided to Mr. Lockwood. In light of subsequent legal developments, test protocols will be mailed to him with the exception of the "academic protocol" which was previously sent directly to Mr. Lockwood's child's school.

3.b. Record sought: A complete copy of Dr. Barbara Teague's records and files relating to my child;

District response: With the exception of test protocols, Mr. Lockwood has already received all responsive records, and test protocols will be mailed.

4. Record sought: All records and emails created by or sent to Superintendent Dallas Blankenship, Martin Hendrix, Barbara Teague, Rudy Napier, and Scott County Middle Schools relating to the OCR complaint and investigation in January-June 2006, or, alternatively, response records generated in March;

District response: "Intra-office correspondence, if it exists, is excepted from the Open Records Act by KRS 61.878(1)(i) and/or (j) as preliminary drafts and notes or preliminary recommendations and memoranda . . . . [T]o the extent intra-office correspondence related to any internal investigation of the OCR complaint, it is . . . deemed work product . . . ."

5. Record sought: Emails referencing "Lockwood," "Lockwoods," my child's initials, "Office for Civil Rights," "Office of Civil Rights," "OCR," "03081278," "03061086," and the last names of key US Department of Education officials in Philadelphia and Washington, D.C. [specific names omitted];

District response: This request is improper as unreasonably burdensome.

6. Record sought: Any record relating to OCR docket numbers 03081278 and 03061086 which has not already been provided, including any record using the term "investigate" and all inflections and derivations thereof;

District response: This request is unreasonable and unduly burdensome and need not be honored.

7. Record sought: An accurate record of the attorneys fees incurred in relation to my child or all of the billing records;

District response: The re-opened OCR complaint and due process hearing were submitted to the District's insurance carrier to cover the cost of defense, though the original OCR complaint had not been. This office 5 stands by the sum given to the [ Georgetown News-Graphic ] with regard to the total billing for the cost of defense of the reopened OCR complaint through the date of the letter to the newspaper [October 2, 2009].

8. Record sought: Minutes from the multidisciplinary team meeting, required under Action Step 5 of the May 22, 2009, agreement setting the re-opened OCR complaint, identifying the attendees, the date, and the location of the meeting, along with a recording of the meeting and a copy of the applicable safeguards;

District response: No documentation exists because the meeting has not occurred.

9. Record sought: Exhibits 1, 2, 3, 4, 6 and (if they exist) 8 and up submitted by Mr. Chenoweth's office to federal investigators in the summer of 2008 that relate to my child;

District response: Mr. Lockwood has been advised that the records are available, and the cost per copy and estimated mailing costs, but the District has received no payment.

10. Record sought: The "new" 2008 written complaint allegedly lodged with the federal government by my family which Mr. Chenoweth billed the District's insurer more than $ 8,000 to settle;

District response: No document exists that is responsive to this request because the District never received a copy.

11. Record sought: Correspondence between Mr. Chenoweth and/or the District and third parties such as insurance companies or the Kentucky State School Board Association related to my child and my family, including those seeking funding to pay for litigation;

District response: These records are attorney-client privileged or attorney work product. Citing Henry v. Yates, 40 S.W.3d 352 (Ky. 2000), KRE 503, and Duffy v. Wilson, 289 S.W.3d 555 (Ky. 2009).

12. Record sought: Documents possessed by Martin Hendrix and Superintendent Putty that explain that test protocols and rating scales identifiable to a child are education records and that parents are entitled to receive a list of the types and locations of their child's education records;

District response: This request does not identify any specific documents and is therefore overly burdensome. Acknowledging that FERPA entitles parents to receive a list of the types and locations of their child's education records, this list will be provided to Mr. Lockwood upon completion.

A number of written communications were transmitted to this office following submission of Mr. Lockwood's appeal and the District's supplemental response. To the extent those communications had any bearing on the narrow open records issues raised, they have been considered and factored into our decision.

The broader issues underlying this open records appeal are beyond the scope of our review. KRS 61.880(2)(a) provides:

If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.

Clearly, then, the Attorney General's role in adjudicating an open records appeal is restricted to reviewing a public agency's denial of a request to inspect a public record and issuing a decision stating whether the agency violated provisions of KRS 61.870 to 61.884. Perforce, such adjudications necessitate the interpretation of collateral laws deemed incorporated into the Open Records Act by operation of KRS 61.878(1)(k) and (l), and examination of facts pertinent to the propriety of the agency's denial of a request or compliance with the requirements of the Act. Our authority under KRS 61.880(2) does not extend further. Although the parties to this appeal are, to adopt the phrase used by the OCR in its February 3, 2010, letter, "mutually frustrated," we must scrupulously avoid invading the prerogative of the DOE, the OCR, and any other agency in which jurisdiction is vested, in conducting our review.

Given the complexity of the open records issues presented, the voluminous documents implicated, and the conflicting statements of fact in the record on appeal, we must still paint with broad strokes in determining whether the District violated provisions of KRS 61.870 to 61.884. To the extent this approach disserves Mr. Lockwood and the District, we offer our apologies and remind them of their right of appeal per KRS 61.880(5)(a). Having said this, we find that the District violated the Open Records Act in the disposition of requests 4, 5, 6, 7, 11, and 12. We find no other violation of the Open Records Act and make no finding on non-open records issues presented in Open Records Log Numbers 200900432 and 200900433. 6

Requests 5, 6, and 12 as insufficiently specific and unreasonably burdensome

Contrary to recent caselaw, the District denied requests 5, 6, and 12 based on Mr. Lockwood's alleged failure to frame his requests with specificity and the unreasonable burden on the agency such requests impose. In support, the District cites opinions/decisions of this office issued as early as 1976 and as recently as 2000. However, in 2008 the Kentucky Supreme Court issued an opinion that "forever changed the landscape of open records analysis as it relates to KRS 61.872(2) 7 and KRS 61.872(6)." 08-ORD-231, p. 2. Before Department of Corrections v. Chestnut, 250 S.W.3d 655 (Ky. 2008):

this office had recognized an agency's general right to deny a request that was not couched in reasonably particular terms. After Chestnut, the Court put this office, and all public agencies governed by the Act, on notice that no such requirement can be read into law.

In Chestnut, the requester sought access to a "copy of [his] inmate file excluding any documents that would be considered confidential [sic]." 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.

The Court went on to reject the Department of Corrections' argument that satisfaction of the inmate's request would impose an unreasonable burden on the agency within the meaning of KRS 61.872(6). 8 The Court began by observing 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.

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").

Assuming, arguendo, that these remain relevant considerations after Chestnut, the District offers very little in the way of an estimate of the actual volume of records implicated by Mr. Lockwood's request, where or how those records are stored, or the difficulties associated with retrieval, review, and redaction. "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. " Chestnut at 665. Simply stated, the District's assertion that fulfilling Mr. Lockwood's request is "unduly burdensome" is insufficient evidence of an unreasonable burden under the Chestnut standard.

In Chestnut, the Supreme Court briefly recognized that KRS 61.872(3) contains a "particularity requirement" when a requester resides or has his principle place of business outside the county in which the public records are located and requests access by receipt of copies through the mail. Id. at 661. KRS 61.872(3)(b) thus provides:

The public agency shall mail copies of the public records to a person whose residence or principle place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency.

Mr. Lockwood resides outside the county in which the requested records are located. He requested access by receipt of copies through the mail. Since the records to which he requested access in Requests 5, 6, and 12 were not "precisely described," as that term has been construed by this office, 9 and are not readily available within the District, we do not believe that it is incumbent on the District to mail him copies of those records. Instead, the District may afford him the opportunity to conduct an onsite inspection of records containing the descriptors contained in his requests. Permitting Mr. Lockwood to conduct an onsite inspection of the records will minimize whatever burden the District might have faced in mailing copies to him. To the extent his request is couched in terms of electronic records, or records responsive to his request are maintained electronically, these descriptors will facilitate an adequate search.

We therefore find that although the District did not provide clear and convincing evidence of an unreasonable burden, Mr. Lockwood did not describe the records which he wished to access by mail precisely and those records were not readily available within the District. The District may, accordingly, discharge its statutory duty by making available for Mr. Lockwood's onsite inspection records responsive to his requests 5, 6, and 12. This decision is, as noted, consistent with the Kentucky Supreme Court's recognition that "there is no particularization requirement in KRS 61.872(2)," Id. at 664, and 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. " Id. at 665.

Requests 4 and 11 as statutorily protected records without supporting explanation

KRS 61.880(1) establishes the minimum standard for agency response to an open records request. That statute 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.

(Emphasis added.) In Edmondson v. Alig, Ky. App., 92 S.W.2d 856 (1996), the Kentucky Court of Appeals broadly construed this language to require "the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson at 858. "A limited and perfunctory response" to an open records request, the court concluded, does not "even remotely comp[y] with the requirements of the Act. . . ." Id. Nor, in our view, does an equivocal and nonresponsive response.

In 99-ORD-39, the Attorney General rejected an agency's attempt to shield from public scrutiny the existence of an investigation into allegations of sexual harassment leveled against a high ranking official by refusing to confirm or deny that an investigation was underway or had been concluded. There, we focused on our duties under KRS 61.880(2), declining to give deference to the agency's sexual harassment policy, and proceeded to an adjudication of the matter on the facts disclosed. Here, we focus on the District's duties under KRS 61.880(1), and in particular, the duty to unequivocally state that a requested record does or does not exist, and, if it exists but cannot be disclosed, both the statutory basis and a particular and detailed explanation of how the statute applies to the records withheld. OAG 86-38; OAG 90-26; OAG 91-101; 96-ORD-164; 97-ORD-16; 01-ORD-138. In support of its denial of requests 4 and 11, the District cites KRS 61.878(1)(i) and (j) and KRE 503, respectively, but does not confirm the existence of records responsive to request 4 or explain the application of KRE 503 to records responsive to request 11. 10 While some or all of the records responsive to these requests may qualify for protection under the cited exceptions, it is apparent that the District has not reviewed its records to confirm the existence of intra-agency correspondence or to determine if any of that correspondence forfeited its preliminary characterization by adoption as the basis, in part, of final agency action. See Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001) and authorities cited therein. Nor has it reviewed its records to confirm that all correspondence between Mr. Chenoweth, the District, and/or third parties relating to Mr. Lockwood's child, family, or funding for the corresponding litigation satisfies the requirements of KRE 503. Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2001). Until it has done so, and notified Mr. Lockwood in writing of its findings relative to requests 4 and 11, its duties under KRS 61.880(1) will not be fully discharged.

Request 7 and the failure to produce responsive billing records.

In response to Mr. Lockwood's request for an accurate record of the attorneys' fee incurred in relation to his child, or release of all billing records, the District explained that the re-opened OCR complaint and due process hearing were submitted to the District's insurance carrier to cover the cost of defense, though the original OCR complaint was not, but "st[ood] by the sum given to the [ Georgetown News-Graphic ] with regard to the total billing for the cost of defense of the re-opened complaint through the date of the letter to the newspaper [October 2, 2009]." Although Mr. Lockwood referenced the newspaper's September 29 request, he did not restrict his request to the costs incurred to October 2, but instead requested a record of attorneys' fees incurred in relation to his child to the date of his request, October 13, without limitation. This would include, for example, attorneys' fees incurred in responding to open records requests for records relating to Mr. Lockwood's child, Attorney General and circuit court appeals thereof, as well as other collateral matters. To insure an "accurate record" that encompasses all attorneys' fees incurred in this matter, the District should afford Mr. Lockwood an opportunity to inspect redacted copies of all billing records submitted to the District, or the District's insurer, or mail him copies upon prepayment of reasonable fees associated with reproduction and mailing.

In Cabinet for Health and Family Services v. Scorsone, 251 S.W.3d 328 (Ky. App. 2008), the Kentucky Court of Appeals determined that a public agency could not adopt a policy of blanket redaction relative to attorney billing records. At page 330 of the opinion, the court reasoned:

The attorney-client privilege does not apply to all communications between an attorney and a client. Indeed, to fall under the attorney-client privilege, a communications must be confidential, relate to the rendition of legal services, and not fall under certain exceptions. See KRE 503. In the case at bar, the burden of proof of demonstrating that a requested public record falls within the attorney-client privilege falls upon the [agency]. See KRS 61.882(3). And, like the Attorney General and the circuit court before us, we cannot imagine that each and every description of services rendered contained in billing statements prepared by non-government lawyers . . . falls under the attorney-client privilege.

Under this line of authority, Mr. Lockwood is permitted to confirm for himself not only the total amount billed for legal services relating to his child, but also the general nature of the legal services rendered as long as the description of those services does not disclose substantive matters protected by the attorney-client privilege. Accordingly, the District should arrange for Mr. Lockwood to inspect, or mail him copies of, all billing records relating to his child including those collateral to the OCR complaint, original or re-opened, and the due process hearing.

Conclusion

Ultimately, we cannot afford Mr. Lockwood the relief he seeks. The District asserts that it honored or is in the process of honoring, in full, requests 1, 2, 3.a., and 3.b. and that no records exist that are responsive to requests 8 and 10, offering plausible explanations, in the case of the latter, for the nonexistence of the records sought. Kentucky's highest court has declared that "[i]n order to refute a complaining party's claims to a nonexistent record, the agency would essentially have to prove a negative, presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives," and that therefore "a complaining party . . . must make a prima facie showing that such records do exist" before his claim should be reviewed. Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005). Mr. Lockwood goes to great lengths to make a prima facie showing that additional records in fact exist, and, under the rule announced in Chestnut, above, we believe it is incumbent on the District to conduct a search of its automated records to ascertain whether additional responsive records exist that employ the descriptive terms identified in his request and appeal. Moreover, we believe he is entitled to a particular and detailed description of records withheld under KRS 61.878(1)(i), (j) and (l), incorporating KRE 503, along with an explanation of how the exceptions apply to the records withheld. Finally, we believe Mr. Lockwood is entitled to access, by on-site inspection or receipt of copies by mail, all billing records for legal services associated, directly or indirectly, with his daughter's case, redacted only to protect privileged matter. Given the District's admission of faulty recordkeeping practices incidental to the issues on appeal, and the resulting burden on the District in producing responsive records, we have referred this matter to the Kentucky Department for Libraries and Archives for additional action as that agency deems warranted. KRS 61.8715. Having done so, we believe we have reached the limits of our authority under KRS 61.880(2).

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.

Frank LockwoodPatricia PuttyRobert L. ChenowethBarbara Teague (KDLA)

Footnotes

Footnotes

1 Mr. Lockwood simultaneously filed two open records appeals. These appeals were assigned two log numbers: 200900432 and 200900433. Because these appeals arise from a common nucleus of fact and raise nearly identical issues of law, they are consolidated for purposes of review.