Request By:
Antoinette Taylor
Kentucky Unemployment Insurance Commission
Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Unemployment Insurance Commission ("Commission") violated the Open Records Act in its disposition of Antoinette Taylor's July 10, 2013, request for records relating to the Commission and its members. For the reasons that follow, we find that the Commission committed both procedural and substantive violations of the Act.
In her July 10 request, Ms. Taylor requested "access to and an electronic copy of" the following:
1. In reference to AD Number 12-11370 A UI, SSN XXX-XXX-1536, Claim Date 06-17-12, identify who appointed commissioners Steve Wilborn ("Wilborn"), Ray Crider ("Crider"), and Jon Ackerson ("Ackerson"). Who does Wilborn, Crider, and Ackerson represent labor, employer, or public? How old is Wilborn, Crider, and Ackerson? What are Wilborn, Crider, and Ackerson [ sic ] political party association? What counties are Wilborn, Crider, and Ackerson are [ sic ] from prior to appointment? How many years have Wilborn, Crider, and Ackerson served as commissioners? What is the date of appointment of Wilborn, Crider, and Ackerson? What are the specific duties of Wilborn, Crider, and Ackerson? What is the compensation of Wilborn, Crider, and Ackerson? Provide applications and any other records on Wilborn, Crider, and Ackerson? Identify if Wilborn, Crider, and Ackerson physically wrote the Commission Order of said case mailed on July 5, 2013.
2. Provide a copy of Unemployment Insurance Commission operating procedures, rules, regulations, methods, including charts of organization, administrative laws.
3. Identify Kevin Robbins ("Robbins"), Jeff Paige ("Paige"), and Joseph U. Meyer ("Meyer") of Office of Employment and Training roles, compensation, roles as attorneys, judges, or official; compensation, application, job description, appointments, resume, and other records on Robbins, Paige, and Meyer. Identify if Robbins, Paige, and Meyer is immune to state or federal lawsuits.
4. Provide all reports submitted to the governor in the past two years.
5. Provide unemployment insurance commission cases reflecting procedural hearings lasting more than six months both active and inactive over the past ten years.
6. Provide case numbers, dates, and location of any pending or filed lawsuits against the unemployment insurance commission over the past ten years. Identify all legal representation such as attorneys, attorney general used by the unemployment insurance commission, include location such as counties.
7. Provide copies of the unemployment insurance commission expenses and budget over the past five years, including salaries.
Attorney James C. Maxson, Education and Workforce Development Cabinet, replied on July 17, 2013:
On July 12, 2013, the Education and Workforce Development Cabinet received several Open Records Requests from you, 1 directed toward numerous different agencies, but all related to your claim for Unemployment Insurance benefits. Due to the nature and extent of the request you have made, the Cabinet will require additional time to process it and generate an appropriate response. The Cabinet expects to be able to respond to your request within ten (10) working days of the date of this letter. In the meantime, if you have any questions, please feel free to contact me.
Ms. Taylor appealed to this office on July 20, 2013, alleging that the agency had not timely provided the records requested, since she had "not agreed to any extensions not [ sic ] to inspect public records. "
We agree that the Commission committed a procedural violation of the Act with its July 17 response. KRS 61.880(1) requires the public agency to make a substantive response to an open records request within three (3) business days. KRS 61.872(5) provides for a limited exception:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
The conditions of this exception were not met here, as there was no suggestion that the records were in active use, in storage, or unavailable. The agency simply responded that it needed more time. "Due to the nature and extent of the request you have made" hardly qualifies as a detailed explanation of the cause for delay. 2 Thus, the Commission's substantive response was untimely under KRS 61.880(1).
On July 31, 2013, Mr. Maxson responded to the appeal with a letter which contained the Commission's substantive response to Ms. Taylor's open records request. He observes that several items in Ms. Taylor's letter are actually requests for information. Requests for information are outside the scope of open records law and an agency is not obligated to honor such a request. 02-ORD-88. The Kentucky Open Records Act addresses requests for records, not for information. 03-ORD-028. In 02-ORD-165, the Attorney General recognized that the Act "was not intended to provide a requester with particular 'information,' or to require public agencies to compile information, to conform to the parameters of a given request." Id. (quoting 96-ORD-251). Therefore, item 6 of the request, as well as the majority of items 1 and 3, do not require the Commission to provide any information.
Nevertheless, parts of items 1 and 3 do contain requests for public records that should not have gone unanswered. Item 1 asks for "applications and other records on Wilborn, Crider, and Ackerson," while item 3 asks for "application, job description, appointments, resume, and other records on Robbins, Paige, and Meyer. "
If the specified documents -- applications, job descriptions, appointments, and resumes -- correspond to actual records in the Commission's possession, it is obligated to produce them unless some exception in KRS 61.878 applies. If there are actual records known to be in the possession of another agency, KRS 61.872(4) requires the Commission, insofar as possible, to direct Ms. Taylor to the proper records custodian. The failure to address these requests constitutes a violation of the Open Records Act.
As for the generalized requests for "other records" on named individuals in items 1 and 3, the Commission would be entitled to consider whether this request is sufficiently specific. In connection with requests to receive copies by mail, KRS 61.872(3)(b) provides, in pertinent part:
The public agency shall mail copies of the public records to a person whose residence or principal 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.
(Emphasis added.) "[T]he primary purpose of the [Open Records] Act is making records available for public inspection. ? If a requester cannot describe the documents he wishes to inspect with sufficient specificity there is no requirement that the public agency conduct a search for such material." 95-ORD-108. "A request must be specific enough so that a public agency can identify and locate the records in question." OAG 89-8. "A description is sufficiently precise for purposes of records access by mail if it describes the records in definite, specific, and unequivocal terms." 98-ORD-17 (internal quotation marks omitted).
Accordingly, we have often held that "blanket requests for information on a particular subject need not be honored. " OAG 90-83; see also 95-ORD-108 and opinions cited therein. Thus, we held that a request to the City of Louisville for "all items pertaining to UPS and the airport expansion" was properly denied for lack of particularity. OAG 91-58 (emphasis omitted). Similarly, a request for "[a]ll memoranda, correspondence and/or documentation of whatever kind and nature regarding [a certain employee] not included in her personnel file" was insufficiently specific. OAG 90-83. 3
This standard of precise description for copies of records is generally not met by what has been described as the "open-ended any-and-all-records-that-relate type of request." 08-ORD-058. Such a request runs the risk of being "so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass." 96-ORD-101. Furthermore, "a request for any and all records which contain a name, a term, or a phrase is not a properly framed open records request, and ? generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records. " 99-ORD-14. Therefore, a request for copies of "other records" relating to a named individual is unlikely to comply with the condition of precise description imposed by KRS 61.872(3)(b).
With respect to item 2 in Ms. Taylor's request, Mr. Maxson's letter indicates that Ms. Taylor was provided a copy of "the most recent Kentucky Unemployment Compensation Laws and Regulations handbook (2012 edition), which would contain all documents responsive to this request." (Emphasis in original.) We take the agency at its word, presuming that there are no "charts of organization" for the Commission which are not included in the book. If any such charts existed, they should have been produced in response to the request.
In response to item 4 of Ms. Taylor's request, Mr. Maxson states as follows:
The fourth paragraph ? requests "all reports submitted to the governor in the past two years." Without more, it is impossible to identify the types of "reports" Ms. Taylor's request is seeking. The request is not targeted to any particular agency, and it does not identify the type of "report" or the subject matter of such a report, so as to allow the Cabinet to reasonably identify the requested documents? Because the exact scope of the request ? is entirely unclear, the Cabinet cannot identify the records sought, so as to determine if any exception would apply, or otherwise provide them.
This is a proper application of KRS 61.872(3)(b), since under the circumstances Ms. Taylor did not "precisely describe" the records she was seeking in such a manner that the public agency was able to identify them. The agency's response as to item 4 thus does not substantively violate the Open Records Act.
As to item 5, Mr. Maxson asserts:
The fifth paragraph ? requests a list of Unemployment Insurance Commission cases that lasted over six months. This request is denied, as any responsive documents are strictly confidential under state statute. KRS § 61.878 provides that records which are made confidential by the legislature are not subject to the Open Records Act. KRS § 341.190(3) provides in part that "records made by the [C]abinet in the administration of chapter [341] are confidential and shall not be published or be open for public inspection, " absent certain exceptions not applicable in this case. KRS Chapter 341 is the Unemployment Compensation Chapter, and the records requested in the fifth paragraph are all records made by the Cabinet in the administration of that Chapter.
We agree that under KRS 341.190(3) an unemployment insurance claimant is not entitled to records relating to other claimants' cases. This confidentiality provision is incorporated into the Open Records Act by KRS 61.878(1)(l), excepting "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Therefore, the Commission properly withheld any responsive records.
Having already disposed of item 6, we turn to item 7 of Ms. Taylor's request. Mr. Maxson responds:
The seventh and final request ? is for a copy of the Unemployment Insurance Commission's expenses and budget over the past five years. The Unemployment Insurance Commission is merely one entity within the larger Unemployment Insurance program. That program is funded by a single revenue stream from the United States Department of Labor. For budgeting purposes, the entire program is accounted for in full, without separate designation for allocation as amongst different entities within the program. While the Commission can account for its expenses by creating certain budgeting reports, these reports are not maintained as a matter of course, and the Cabinet is not required to create on[e] where it does not otherwise exist, specifically for purposes of responding to Ms. Taylor's request. Thus, the request ? is denied.
It appears, then, that no records exist which would fulfill Ms. Taylor's request for copies of the "Commission's expenses and budget over the past five years." A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states that it does not possess.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by explaining why the agency does not possess the record, we do not believe that this appeal warrants additional inquiries, since we do not have a substantial basis on which to dispute the agency's representation that no such records exist. Cf.
Bowling v. Lexington-Fayette Urban County Gov't, 172 S.W.2d 333, 341 n.4 (Ky. 2005) (complaining party has the burden of production in litigation over the existence of a public record) ; see also OAG 76-375 (public agencies "are not obligated to compile a list or create a record to satisfy an open records request").
Nevertheless, item 7 did specifically request records of "salaries" paid by the Commission over five years. Even if there may exist no itemized list of expenses attributable specifically to the Unemployment Insurance Commission, it strains credulity to suppose that no record exists of salaries paid to members or staff of the Commission. To the extent that copies of those records were denied, there was a substantive violation of the Open Records Act.
In conclusion, we find that the Unemployment Insurance Commission committed a procedural violation of KRS 61.880(1) by making an untimely disposition of Ms. Taylor's request without statutory justification for the delay. The Commission committed substantive violations to the extent that salary records, organizational charts, applications, job descriptions, appointment documents, and resumes existed that were not provided in response to the request. Otherwise, the Commission's disposition was in compliance with 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 proceeding.
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Distributed to:
Ms. Antoinette Taylor
James C. Maxson, Esq.
Footnotes
Footnotes
1 Other open records requests made by Ms. Taylor have resulted in separate appeals to this office.
2 We have previously ruled, for example, that merely stating the request asks for a "large amount of information" is not a sufficiently "detailed explanation" under KRS 61.872(5). 95-ORD-27.
3 To whatever extent our prior decisions may have applied a "reasonable particularity" standard to requests for on-site inspection of records, they have been implicitly overruled by Com. v. Chestnut, 250 S.W.3d 655 (Ky. 2008). Our analysis here is concerned with requests for copies under KRS 61.872(3)(b).