Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Northern Kentucky University ("NKU") violated the Open Records Act in its disposition of two requests on March 1, 2010, by Jesse Call, reporter for independent student newspaper The Northerner, to view certain grievances and correspondence. For the reasons that follow, we conclude that NKU's response substantively violated the Act in part.
Mr. Call's first request was sent by e-mail 1 to Sara Sidebottom and Cathy Dewberry, and sought "access to and a copy of: grievances filed with the University by Michael Griffin and Blanche Pringle-Smith after February 1, 2010." (Emphasis omitted.) On March 3, 2010, Associate Counsel Jay T. Manire replied by e-mail:
KRS 61.878(1)(a) & (i) exempt from inspection "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy" as well as any "preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of [a] public agency. " The grievances filled [ sic ] by Mr. Griffin and Ms. Pringle-Smith constitute notes or correspondence with private individuals where there has been no final agency action, and the public disclosure thereof would clearly be unwarranted invasion of their personal privacy. Moreover, in order to ensure fair and equal treatment for all employees, the Grievance Policy of the NKU Staff Handbook provides for "confidentiality of any information related to grievances or grievance proceedings which would identify, directly or indirectly, any parties to the grievance" during the review process. Accordingly, your request for these records is denied.
Only a few minutes after his first e-mail, Mr. Call had sent a second request in the same manner to the same recipients, seeking the following:
access to and a copy of: electronic mail messages, memos, letters, or other correspondence between Human Resources and the following individuals:
1. Blanche Pringle-Smith
2. Michael Griffin
3. Jeffrey Waple
4. Steve Meier
5. Zebulun Davenport
6. Miya Simpson
7. Lisa Rhine
8. The administrative assistants of persons 1-7.
All for the date period of January 1, 2010 to present.
The response to this request likewise came by e-mail from Jay T. Manire on March 3, 2010, and stated:
Please be advised that your request is denied for the following reasons:
(1) Your request lacks specificity and is unreasonably burdensome under KRS 61.872(6). [Citations to decisions omitted.]
(2) KRS 61.878(1)(a), (i) and (j) exempt from inspection "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy" , "preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of [a] public agency, " and "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. " To the extent there are any electronic mail messages, memos, letters or other correspondence between HR and the specified individuals that are part of and material to an ongoing employee grievance review, these are considered preliminary drafts, notes, correspondence and recommendations in which opinions were expressed or policies recommended. Because there has been no final agency action with regard to the grievances, and the public disclosure of these preliminary drafts, notes, correspondence and recommendations would clearly be an unwarranted invasion of the employees' personal privacy during this process, your request for these records is denied.
By its terms, the second reason for denying this request was limited to correspondence related to ongoing employee grievances. Therefore, NKU's only stated basis for denying access to other requested correspondence was the first reason; i.e., lack of specificity and unreasonable burden under KRS 61.872(6). Mr. Call initiated this appeal on March 4, 2010.
A response from Mr. Manire on behalf of NKU was received by this office on March 23, 2010. NKU offers five rationales for its denial of Mr. Call's requests, which Mr. Manire summarizes as follows:
A. The privacy interests in the employee grievances and any records of the investigation outweighs [ sic ] the general rule of public disclosure under KRS 61.878(1)(a).
B. Copies of employee grievances and the investigation records are exempt from public inspection until there has been a final agency action under KRS 61.878(1)(i) and (j).
C. Public disclosure of the employee grievances and the investigation records before there has been a final agency action would violate federal and state law [ viz. due process guarantees] under KRS 61.878(1)(k) and (l).
D. Pre-mature [ sic ] public disclosure of the employee grievances and the investigation records would harm the University as the records were compiled in the process of investigating statutory or regulatory violations to be used in an administrative adjudication under KRS 61.878(h).
E. The Northerner's request for electronic mail messages, memos, letters or other correspondence between "Human Resources" and the listed individuals since January 1, 2010 lacks specificity and is overly burdensome.
With regard to the employee grievances and records of the investigations, we decline to address arguments A, C, and D, since we find argument B dispositive as to those records.
It is well established that records pertaining to an ongoing internal investigation by a public agency are exempt from disclosure before final action has been taken. KRS 61.878(1)(i) and (j) authorize the nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; [and]
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
Records constituting part of a continuing investigation "are properly characterized as preliminary, and therefore remain exempt from public inspection, " prior to final agency action. 05-ORD-147, p. 3; see also 01-ORD-47. Even the initial grievances are, at this time, not excluded from the category of preliminary records. Initiating complaints "are preliminary documents within the meaning of KRS 61.878(1)(i) and (j) until final action is taken." 02-ORD-101, p. 4. Accordingly, the employee grievances and any records constituting part of the investigation need not be disclosed until NKU takes final action on the grievances.
As to the remaining correspondence requested by Mr. Call, i.e., that which does not constitute part of the grievance investigations, we do not find that his request lacked specificity or that NKU has produced clear and convincing evidence of an "unreasonable burden" under KRS 61.872(6). Mr. Manire's argument is as follows:
We believe The Northerner's request for electronic mail messages, memos, letters or other correspondence from "Human Resources" lacked specificity. "Human Resources" is just one of many offices on the campus of Northern Kentucky University. It includes more than 20 full and part-time employees with various job responsibilities. Each has his or her own personal email account, which is used to communicate and conduct HR business. Additionally, the Office of Human Resources has established several generic email accounts from which it routinely communicates with University personnel. The Office of Human Resources also regularly distributes and receives various memos, letters or notices via inter-office mail. The Northerner's request for electronic mail messages, memos, letters or other correspondence from "Human Resources" could be interpreted to mean from the Office of Human Resources; from individuals employed in the Office of Human Resources; or both. Assuming the requester meant both, satisfying the requests would require our office to parse through approximately 38 different email accounts, each having hundreds, if not thousands, of emails stored in multiple folders and sub-folders, only to find those messages exchanged since January 1, 2010 between the Office of Human Resources, individuals employed in the Office of Human Resources and the 14 other employees specifically named in The Northerner's requests. Assuming there are any emails that still exists [ sic ], our office would then have to read through each record and determine whether it is exempt from public disclosure under one of the enumerated statutory exceptions. Based on prior experience, we anticipate compliance with such of [ sic ] broad request would take several weeks, if not months, and essentially shut down our office.
There is no requirement under KRS 61.872 that records be "precisely describe[d]" when a request is made to inspect records in person, although there is such a requirement when copies are requested through the mail.
Com. v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008). Mr. Call's request was for "access to and a copy of" correspondence, a request which falls into both categories and was therefore inappropriately rejected out of hand on the basis of the particularity requirement in KRS 61.872(3).
Furthermore, we do not find that the purported ambiguity concerning the meaning of "Human Resources" amounts to a lack of specificity. As NKU has indicated, the Office of Human Resources is a discrete organizational unit consisting of a defined group of employees. The identifying phrase "Human Resources" used by Mr. Call "was adequate for a reasonable person to ascertain the nature and scope of [his] open records request." Chestnut, 250 S.W.3d at 661. He referred not only to e-mails, but to letters, memoranda, and any other forms of correspondence. From this it was evident that he was seeking not merely transmissions from a particular "generic" e-mail account or accounts, but all communications between anyone in the Human Resources office and the named individuals listed in his request. 2
Nor do we believe NKU has met the standard under KRS 61.872(6) of showing by "clear and convincing evidence" that production of the records would constitute an unreasonable burden. The fact that there may be numerous e-mail accounts within the Office of Human Resources with various folders and subfolders does not excuse NKU from its duty to maintain public records and allow reasonable access to those records. A public 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." Chestnut, 250 S.W.3d at 666. NKU provides no clear and convincing evidence that it is unable to review the folders and subfolders to identify any e-mails to or from the persons identified by Mr. Call over the relatively short period of time for which those records were requested.
The fact that such e-mails might need to be reviewed and redacted for exempted or privileged material does not, in and of itself, amount to an unreasonable burden. A public agency is always "obligated to sift through any requested materials in order to determine which documents (or portions of a document) must be redacted or excised." Chestnut, supra, 250 S.W.3d at 664. "Thus, 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. (See 04-ORD-028 for a thorough analysis of this Office's past decisions concerning the "unreasonable burden" standard.) In short, NKU has not made the statutory showing that complying with the request for e-mails and other forms of correspondence would be unreasonably burdensome. To the extent that it denied access to such records, other than those records pertaining to the ongoing grievance investigations, NKU violated the Open Records Act.
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 proceedings.
Jesse CallSara L. Sidebottom, Esq.Jay T. Manire, Esq.
Footnotes
Footnotes
1 Procedurally speaking, requests by e-mail need not be honored under the Open Records Act. See 09-ORD-190 (citing 09-ORD-116). By its responses, however, NKU has waived the delivery requirement of KRS 61.872(2) and we therefore review the substantive merits of its disposition.
2 As for particular e-mail accounts, folders, and subfolders, it can appropriately be said, as the Court stated in Chestnut, that Mr. Call "could not reasonably be expected to request blindly, yet with particularity, documents from a file [or electronic files] that he had never seen." Id.