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 Education and Workforce Development Cabinet ("Cabinet") violated the Open Records Act in its disposition of Antoinette Taylor's two requests dated July 20, 2013, and one request dated July 21, 2013. All of these requests were received by the Cabinet on July 24, 2012. For the reasons that follow, we cannot conclude that a substantive violation of the Act occurred, although the Cabinet's untimely response was a procedural violation.
In her first July 20 request, Ms. Taylor wrote to Haley Presley, Director's Office, Department for Workforce Investment, Office of Employment and Training, stating as follows:
I am in receipt of and thank you for your letter dated July 17, 2013 reflecting only 26 weeks or the maximum of $ 8,372.00 of potential unemployment insurance benefits. You failed fully to respond to my open records request of 52 weeks I have properly claimed from June 17, 2012 to June 7, 2013. How much would be payable through the Emergency Unemployment Compensation when the Jefferson Circuit Court overturns the Commission's decision? Please provide an exact calculated or estimated payable amount as you attempted to explain the exhaustion of the initial unemployment claim.
The Cabinet responded in an August 12, 2013, letter from attorney James C. Maxson, which also contained the Cabinet's responses to the other two requests at issue in this appeal. As to this first request, he stated: "This is a request for information, as opposed to a request for non-exempt public documents, and thus, it is denied." We agree. It appears that Ms. Taylor was asking for a calculation of hypothetical benefits that would be payable in a hypothetical situation, not a copy of an existing public record.
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). Accordingly, this request was not subject to the provisions of the Open Records Act.
Ms. Taylor's second request on July 20 was as follows:
Provide a full and complete copy of the Statement of Financial Disclosure with the Executive Branch Ethics Commission, including other agencies on the following individuals of the Kentucky Education and Workforce Development Cabinet:
If your office does not maintain these public records, please let me know who does and include the proper custodian's name and address.
To this request, Mr. Maxson replied: "Please know that the Education and Workforce [D]evelopment Cabinet is not the Custodian of these Records. You will have to refer your request to the Executive Branch Ethics Commission, who the Cabinet believes to be the proper custodian of such records."
We find this response to be ambiguous. It is true that a public agency cannot afford a requester access to a record that it does not have or that does not exist, 99-ORD-98, and the agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In this case, however, it is unclear whether the Cabinet's response means that the Cabinet does not possess the records at all, or whether it does possess copies but does not consider itself the official "Custodian" of the records. As we stated in 09-ORD-107:
The mere possession of records by the agency from which those records are requested is enough to compel that agency to make them available for public inspection or explain why they are exempt. Cf. 98-ORD-100 (discounting the concept of "casual possession").
Moreover, "there is no specific exception to the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from that other public agency. " OAG 91-21. Therefore, if the Cabinet in fact possessed the records sought by Ms. Taylor, it would have been obliged to produce them. If not, however, there was no substantive violation of the Act.
Ms. Taylor's third request, dated July 21, 2013, asked for the following:
1. Provide a copy of all application records of Thomas O. Zawacki of Education and Workforce Development, including Statement of Financial Disclosure with the Executive Branch Ethics Commission, start of employment, salary, other compensation including benefits, job description, sworn statements, resume, application, appointments, political party affiliation, county represented or from what county, et cetera.
2. Provide a copy of retirement benefits, compensation of Joseph U. Meyer of Education and Workforce Development, start, and end of employment, sworn statements, et cetera.
3. Provide names, titles, dates, purposes, and amounts of all state grants received by Education and Workforce Development in all departments for the past five years.
4. Provide names, titles, dates, purposes, and amounts of all federal grants received by Education and Workforce Development in all departments for the past five years.
5. Provide copies of audits and any findings of the Education and Workforce Development in all departments for the past ten years.
Mr. Maxson on August 12, 2013, in response to item 1, stated: "Please know that the Secretary's position is an appointed position, rather than one to which an applicant applies. Thus, there are no 'application records' for the Secretary, and consequently, there are no records responsive to this request."
In response to item 2, Mr. Maxson stated that as to the "copy of retirement benefits, compensation" requested, "[t]his Cabinet is not the Custodian of the Records related to former employees' retirement benefits and compensation. You will have to refer your request to the Kentucky Retirement System, who this Cabinet believes to be the proper custodian of such records." Our observation, as above, is that this response is ambiguous as to whether the Cabinet has a copy of the requested records. For the reasons previously stated herein, to the extent that the Cabinet may possess these records, it is obligated to produce them.
Further responding to Item 2, Mr. Maxson correctly stated that the request for "start, and end of employment" was a request for information with which the Cabinet need not comply. As to the portion requesting "sworn statements, et cetera, " Mr. Maxson stated that the request "lacks the specificity necessary so as to allow the Cabinet to reasonably identify the records requested and review them for any potential exceptions to the Open Records Act, and thus, the Cabinet is unable to comply with the balance of this request for that reason." Since we are equally unable to guess what might be signified by the expression "sworn statements, et cetera, " we conclude that this response was proper.
As to items 3 and 4, we agree with Mr. Maxson's response that these were requests for information and could properly be denied.
In response to item 5, "copies of audits and any findings of the Education and Workforce Development [Cabinet] in all departments for the past ten years," Mr. Maxson stated:
This request does not specify what types of "audits" or "findings" it is seeking. The Cabinet is a very large Cabinet with many programs, all of which are subject to numerous types of audits, or which may be connected to some kind of "findings." There would have been an innumerable number of "audits" Cabinet-wide, within the last ten years. Without more, it is impossible to identify the particular audit (s) and findings(s) [ sic ] you are seeking. If you can distill your request to a specific type of audit or finding, a specific subject matter, the Cabinet would have a better chance of identifying any potential responsive records, but without more, your request lacks the specificity necessary so as to allow the Cabinet to reasonably identify the records requested and review them for any potential exceptions to the Open Records Act, and thus, the Cabinet is unable to comply with this request for that reason.
We agree that some ambiguity exists in this request, inasmuch as it is unclear from the wording whether Ms. Taylor is requesting audits conducted on the Cabinet or any of its departments, audits conducted by the Cabinet or any of its departments, or audits which merely happen to be in the possession of the Cabinet or any of its departments.
This ambiguity is significant because the Cabinet comprises such disparate agencies as the Department of Education, the Department for Libraries and Archives, the Commission on the Deaf and Hard of Hearing, the Department of Workforce Investment, Kentucky Educational Television, the Unemployment Insurance Commission, the Commission on Proprietary Education, and the Education Professional Standards Board. 1 A number of these agencies may perform audits on outside entities that they regulate or oversee. Some may perform internal audits on themselves, or be subjected to audits by an outside entity. Some may merely receive copies of audits performed on outside entities by third parties, including other state agencies, private auditors, or the federal government. Given that Ms. Taylor's interests seem to focus primarily on the Unemployment Insurance Commission, it is unlikely that she would actually be seeking everything falling within the category of audits and findings related to the Cabinet or its agencies for the last ten years.
A reasonable request for clarification of an applicant's request, aimed at facilitating rather than delaying the disclosure of public records, does not violate the Open Records Act. 13-ORD-104. We interpret the Cabinet's response as a request for clarification of the request, which in this instance was warranted and did not constitute an actual or constructive denial of access to public records. We observe, however, that Ms. Taylor could have been given a more detailed explanation of the disparate categories of existing records in order for disclosure to be more truly facilitated. See generally Com. v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008) (applicant "could not reasonably be expected to request blindly, yet with particularity, documents from a file that he had never seen").
Lastly, we find that the Cabinet committed a procedural violation of the Open Records Act. On July 29, 2013, Mr. Maxson sent a letter to Ms. Taylor stating as follows:
On July 24, 2013, the Education and Workforce Development Cabinet received several additional Open Records Requests from you, directed toward numerous different agencies, but all related to your claim for Unemployment Insurance benefits. Please be advised that the Cabinet is in the process of reviewing your requests. 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.
We note that from July 24 to August 12 is thirteen (13) business days. 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 13-ORD-133. Thus, the Cabinet's substantive response was untimely under KRS 61.880(1).
In summary, we find no substantive violation of the Open Records Act, except to whatever extent the Cabinet may have relied on a "casual possession" argument to avoid producing copies of another agency's records that may have been in its possession. The untimeliness of the Cabinet's substantive response, however, constituted a procedural violation of KRS 61.880(1).
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:
Ms. Antoinette TaylorJames C. Maxson, Esq.
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