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 University of Louisville violated the Open Records Act in the disposition of Andrew M. McFarland's April 6, 2010, request for copies of "all records under [his] name (documents, forms, notes, etc.)" relating to his application for Master of Education admission. Mr. McFarland submitted his request to the Director of the University's Initial Teacher Certification Student Services, Betty Hampton, who immediately declined, explaining that "[i]t is not the practice of the College of Education and Human Development to make these materials available to applicants." Shortly thereafter, he initiated this appeal. Although the University erred in failing to treat Mr. McFarland's request as an open records request, insofar as it fully satisfied the requirements of KRS 61.872(2), we find that these errors were subsequently mitigated by the disclosure of all nonexempt records, and compliance with KRS 61.880(1) in the nondisclosure of exempt records, responsive to his request.
Upon receipt of this office's notification of Mr. McFarland's appeal, University Counsel Angela D. Koshewa advised:
Mr. McFarland's April 6 correspondence to which Ms. Hampton . . . replied . . . did not comport with the University's published policy on records inspection. However, as the acting custodian of records, I will treat Mr. McFarland's request as having been made as of today's date and will review the requested records in light of KRS 61.884 and 61.878 and make an appropriate response to Mr. McFarland concerning record inspection.
Having received no further correspondence concerning this matter, on May 7, 2010, this office contacted the University by email to ascertain its status. The University promptly furnished us with its emailed response to Mr. McFarland's request in which it agreed to make available for his inspection 44 pages of responsive records or, alternatively, mail him copies of the records upon receipt of $ 6.40 for reproduction and postage.
The University denied Mr. McFarland access to 15 pages of records which were identified as preliminary drafts and notes and preliminary recommendations and memoranda in which opinions are expressed. In support, the University invoked KRS 61.878(1)(i) and (j), explaining that "there needs to be an assumption among staff members whereby they may express opinions, make recommendations, and otherwise participate in the activities of formulating the final decision without public scrutiny." Additionally, the University withheld three letters of recommendation on the basis of 34 CFR § 99.12(3), authorizing nondisclosure of letters of recommendation if the student has waived his right to inspect and the letters relate to the student's admission to an educational institution, notwithstanding rights of access otherwise granted by the Family Education Rights and Privacy Act. 1 Mr. McFarland does not dispute nondisclosure of the latter records, but questions the University's nondisclosure of the records it characterized as preliminary. Having reviewed the disputed records pursuant to KRS 61.880(2)(c), we agree that they consist of preliminary notes, preliminary recommendations, and opinions, and affirm the University's decision to withhold those 15 pages.
We address first the procedural issues on appeal. Mr. McFarland submitted his request in writing, described the records he wished to access, affixed his signature, and printed his name legibly. Although he did not expressly invoke the Open Records Act, his request clearly satisfied all of the requirements found at KRS 61.872(2). That provision does not require specific reference to the Act. Mr. McFarland submitted his request to the director of Initial Teacher Certification Student Services in the Education Advising Center of the University's College of Education and Human Development. The director's response, issued two days later, was deficient insofar as it did not identify an exception authorizing nondisclosure of the requested records or explain how the exception applied to the records withheld. The fact that this response was not issued by the University's official custodian or under her authority pursuant to KRS 61.880(1) accounts for these deficiencies, but the director would have been better advised to immediately provide Mr. McFarland with the name and location of the University's official custodian, or forward his request to the official custodian, pursuant to KRS 61.872(4).
The University indicated that Mr. McFarland's request "did not comport with [its] published policy on records inspection, " but did not provide us with a copy of that policy or explain how his request fell short. Upon receipt of our notification of Mr. McFarland's appeal, the University took immediate steps to respond and thereafter complied with KRS 61.880(1) . In so doing the University mitigated its error. Nevertheless, we encourage the University to review its records inspection policies to insure timely processing of open records requests like Mr. McFarland's.
Our review of the 15 pages to which Mr. McFarland was denied access confirm that they fall within the parameters of KRS 61.878(1)(i) and (j) and, in particular, those provisions that exempt preliminary notes and preliminary recommendations and opinions. They consist of assessment worksheets used by interviewers during the application process and can be properly characterized as "part of the tools which a public employee or officer uses in hammering out official action within the function of his office."
Courier-Journal v. Jones, 895 S.W.2d 6, 7 (Ky. App. 1995) citing OAG 78-626. Here, the agency's official action is acceptance or rejection of the application to the Masters of Education program, and the tools used in hammering out that action are the assessment worksheets that contain both personal notes and opinions. As the University correctly observes, evaluative records such as these have often been accorded protection from disclosure under authority of KRS 61.878(1)(i) and(j) to promote candor and a free exchange of ideas. Because KRS 61.878(1)(i) and (j), along with the other exceptions to the Open Records Act, "suggest[] an absence of legislative intent to create unrestricted access to records," and the disputed records fall within their parameters, we find that Mr. McFarland's right of access to the remaining 15 pages of records must yield to the statutorily recognized "need for governmental confidentiality." Jones at 7. 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.
Andrew M. McFarlandSherri PawsonAngela Koshewa
Footnotes
Footnotes
1 20 U.S.C. 1232g.
2 We do not address Mr. McFarland's right of access to these records under FERPA. The record on appeal does not reveal whether he was, or is, a student at the University or whether he was or was not admitted into the masters program.