Opinion
Opinion By: Jack Conway, Attorney General; Ryan M. Halloran, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Louisville subverted the intent of the Open Records Act within the meaning of KRS 61.880(4), in the disposition of Gregory P. Puccetti's August 15, 2013, e-mail (sent after the close of business) request 1 and his August 26 e-mail request (also sent after COB). Mr. Puccetti initially asked for "(A) Copies of all e-mails by and between me and: 1. The Faculty of the School of Urban and Public Affairs [UPA]; 2. The Student Grievance Officer; and, 3. Members of the A&S Grievance Committee ." Mr. Puccetti also requested "(B) Copy of the Hearing audio record of my Grievance Hearing" in addition to "(C) A copy of "all documents relating to the Grievance process," including but not be limited to:
1. My initiating Grievance document;
2. The Recommendations of the Grievance Committee sent to the Dean of the College of Arts and Sciences and/or to The Provost for a final decision;
3. The Final Decision signed by the Dean of the College of Arts and Sciences and/or the Provost;
4. Notice of all meetings of faculties and committees wherein my case was discussed and/or adjudicated; and,
5. Minutes of all meetings of all subcommittees where my case was discussed and/or adjudicated to include, but not be limited to, discussion of the offer or settlement made to me, and authorization per say [sic]."
Lastly, he asked for "Controlling KO[R]A Statutes and University Policies, Procedures, and/or other Regulations for Open Records Requests[.]"
By e-mail dated August 21, 2013 (sent after COB), Senior Compliance Officer Sherri F. Pawson acknowledged receipt of Mr. Puccetti's request 2 and further indicated that she had "asked the appropriate university officials to identify all responsive records and send them to me for review." As Mr. Puccetti was "requesting numerous records held in various offices," Ms. Pawson advised that "it may take a bit of time to gather and review the documents. I expect to have a response for you by August 30th." With regard to "copies of all e-mails" between himself and the faculty of UPA, Ms. Pawson advised Mr. Puccetti that his request was "overly broad in that you do not limit your request to a specific individual and/or provide a narrow time frame. There could be thousands of routine emails sent to a student by faculty, it would be overly burdensome to identify and review all such records." Ms. Pawson explained that she asked the "department chair to identify any emails regarding your grievance, beyond that you'll need to make a new, narrowed request." Likewise, Ms. Pawson advised Mr. Puccetti that his request for "all documents related to the Grievance process" was "overly broad and you do not provide enough description or identifiers of the specific records you seek. I asked folks in A&S to send me copies of your grievance and the committee recommendation, beyond that you will need to make a new, narrowed request." 3
By e-mail directed to Ms. Pawson on August 26 (after COB), Mr. Puccetti advised that he was "redirecting" and "renewing" his August 16 request. He asked for documents in "connection with activities of the College of Arts and Sciences Unit Academic Grievance Committee" that reflected nineteen (19) things identified as (a) through (s). By e-mail directed to Mr. Puccetti after the COB on September 4, 2013, Ms. Pawson acknowledged receipt of his request, advising that she "asked the appropriate university officials to identify all responsive records and send them to me for review." As Mr. Puccetti was "requesting numerous records held in various offices," Ms. Pawson advised that "it may take a bit of time to gather and review the documents. I expect to have an update to the progress, if not a response, by Monday Sept 16th." By separate e-mail on September 4, Ms. Pawson apologized for the delay regarding Mr. Puccetti's original request, advising "I have received some records but am still reviewing them[.] I will have a response for you by early next week." On September 11, Ms. Pawson responded to both requests, identified as 13-398 and 13-415, respectively, advising that she was "releasing all the responsive records I identified for both requests. The records consist of email [] documents. I did not identify any record responsive to your request for a 'copy of the Hearing audio record of my Grievance Hearing.' . . ." Ms. Pawson advised Mr. Puccetti that upon receipt of advance payment, she would provide the requested copies. In response to his inquiry of September 12 regarding the required timing of the payment and the permissible methods thereof, Ms. Pawson advised that cash, check or money order would be accepted when the records were retrieved. Clarifying her original response "regarding the grievance tape, " Ms. Pawson explained that "my understanding is an audio tape, 'Puccetti v. Urban and Public Affairs hearing' was identified but the tape was blank. It made no sense to provide you a blank tape thus my response. I didn't know you weren't aware of the error." In response to a September 17 e-mail alleging that she produced "few substantive responses," Ms. Pawson advised that her "responses stand." I provided copies of "all records identified. If you are aware of a specific document(s) that was not provided, please give me the sender/recipient, /date/time, and subject matter and I will inquire."
By letter also dated September 17, Mr. Puccetti initiated this appeal, challenging the failure of the University to either comply with KRS 61.880(1) or be "substantially compliant with the lawful terms of KRS 61.872(5)." He included a copy of a "Checklist" of "' Records Requested' versus 'Records Furnished by/to Gregory Puccetti" as evidence that his e-mail thread of communications with Ms. Pawson culminated in "the production of a limited number of the requested materials," except for "copies of policies and procedures that [he] already possessed, did not request and/or were/are easily available to the general public via the University's various websites." However, on that checklist he acknowledged that records were actually produced in response to items (b), (c), (d), (f), (g), (j), (k), (n)(partial) and (p)-(s) of his request and essentially challenged the content and/or volume of the records produced in response to all of the remaining items. The "objective basis for his belief there is prima facie evidence" that additional records exist consists of the "University's own rules, regulation and/or other published policies," 4 including those relating to "records management and retention, " (which Mr. Puccetti believes, in part, require the University to maintain the records being sought "in the very same University Archives" where Ms. Pawson's office is located) and generally the "reasonable expectation" that various University officials would comply with said rules, regulations and/or policies. Regarding the blank audio recording, he acknowledged that "on the surface, such an admission and a finding might be attributed to accidental means."
On the whole, Mr. Puccetti asserted, the University "has consumed almost a month deploying a variety of contrivances and obstacles to avoid actually making the clearly identifiable requested records" available; thus, he "developed the belief that the University has purposefully engaged in a process of unlawful delays, fraudulent misdirection and other illegal procedural devices designed to hinder, thwart or delay" his efforts to acquire such records. He argued that the University subverted the intent of the Act within the meaning of KRS 61.880(4) and further contended that violations of KRS 61.880(1), 61.872(5), 61.872(6), 5 61.871, and 61.8715 were committed. Finally, he asked this office to "initiate an investigation of the integrity of the University's Open Records program, so as to evaluate the compliance of the University's Open Records unit and its compliance with requirements of KORA, and its fundamentally flawed methodologies for undertaking KORA investigations for documents."
Upon receiving notification of Mr. Puccetti's appeal from this office, Ms. Pawson found it "hard to imagine that my handling of two lengthy, broad requests which were satisfied in 17 business days, producing all records identified" led Mr. Puccetti to conclude there was "collusion, incompetence, unlawful delays, and willful denial on the basis of his case alone." Ms. Pawson disputed his assertion that the University "has failed to issue any substantive responses, and has actually produced no records." I did "not withhold any records from release," Ms. Pawson reiterated, "and have told Mr. Puccetti this on at least three occasions." Ms. Pawson advised that the University follows the State University Model Records Retention Schedule, Records Series U0644 of which governs the "Grievance File," and provides that such records be destroyed "3 years after resolution of case;" however, the University has "adopted an exception," determining to maintain grievance files permanently. 6 Mr. Puccetti misunderstands the Schedule, Ms. Pawson explained, in expecting that the University Archives "maintains physical control of every record ever created at the University." With regard to his "'Prima Facie' argument" that records must exist because the University "has regulations and policies regarding records retention and KORA," Ms. Pawson advised there is "nothing in our policies that require[s] us to keep every record created at the University; actually the state's Retention Schedule exists to guide state agencies and universities on best practices in maintaining essential records. Very few of the categories are maintained permanently." Absent specific details regarding the records that Mr. Puccetti believes are being withheld, "the University has made a good faith effort to produce the records he sought. Just because an individual might think a record would be created in regard to a particular situation or event," does not mean that such a record was actually created; the University cannot maintain a nonexistent record(s).
Regarding Mr. Puccetti's claim that the University imposed "excessive fees" by "exercising the option" of requiring advance payment, Ms. Pawson correctly asserted that she was "clearly within the bounds of the statute" in requiring payment of the prescribed fee of ten (10) cents per page when his designee picked up and paid for the copies. "The statute contains no provision for waiver of the prepayment requirement for any requester. " 08-ORD-239, p. 3. Simply put, "all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligation for receipt thereof." 94-ORD-90, p. 3; 92-ORD-1136. Accordingly, the University acted in compliance with provisions of the Open Records Act in requiring advance payment of a reasonable copying charge that did not exceed the cost of duplication, and enforcing a standard policy relative to assessment of the charge. See KRS 61.874(1) and (3); KRS 61.872(3); 05-ORD-230, p. 7.
Mr. Puccetti's request for this office to "initiate an investigation" demonstrates a fundamental misconception of the Attorney General's narrow scope of review under KRS 61.880(2)(a). This office is not empowered to conduct investigations, gather evidence, interview witnesses, etc. ; rather, KRS 61.880(2)(a) specifically requires the Attorney General to "review the request and denial and issue . . . a written decision stating whether the agency violated provisions of [the Open Records Act] ." See OAG 86-35; 98-ORD-23; 09-ORD-186; 11-ORD-056. Further, this office has consistently recognized that "it is not, in general, within our statutory charge to resolve questions of fact or to otherwise act as a trier of fact." 09-ORD-120, p. 4.
However, in failing to either provide Mr. Puccetti with access to all existing nonexempt documents responsive to his written request(s) within three business days per KRS 61.880(1), or properly invoke KRS 61.872(5), if applicable, by citing that provision and providing a detailed explanation of the cause for delay, the University violated the Open Records Act from a procedural standpoint. Its response to Mr. Puccetti's August 26 request (received on Tuesday, August 27) also should have been issued on Friday, August 30 (though it probably would not have been received via regular mail delivery until September 3 or 4). The University erred in failing to initially advise Mr. Puccetti that a responsive audio recording did not exist.
Absent from both of the responses by the University is any reference to KRS 61.872(5) and the requisite detailed explanation; advising that "numerous records held in various offices" are implicated simply does not suffice. Ms. Pawson did provide a specific date by which the University expected to produce all existing responsive documents on the first occasion, and expected to have "an update to the progress, if not a response" on the second, though on both occasions the responses otherwise lacked the specificity KRS 61.872(5) expressly required and the agency missed its first deadline. See 02-ORD-217 (agency response that complying with request "will be a very time-consuming task since you are requesting records that date back to 1998" was not sufficiently detailed as it set forth "neither the volume of records involved nor explain[ed], in detail, the problems associated with retrieving the records implicated by the request"); 12-ORD-043. Even assuming the records being sought were "in active use, in storage or not otherwise available," the University did not identify which of these permissible reasons for delay applied, if any. See 12-ORD-211; 13-ORD-074. However, the relatively minimal delay between September 4, when Ms. Pawson first responded to Mr. Puccetti's August 27 request, and September 11, when she advised that all existing responsive documents identified were being made available, was reasonable given the nineteen (19) categories of records ultimately sought. Applicants making requests for a significant volume of records can "not reasonably expect agencies . . . to produce all responsive records within the three day deadline. " 12-ORD-097, p. 6.
With respect to Mr. Puccetti's suggestion that the University failed to include responsive documents, the Attorney General has consistently recognized that a public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Insofar as the University failed to initially advise Mr. Puccetti that no responsive audio recording existed and explain why, the agency violated the Act. See 09-ORD-145; 10-ORD-137.
In responding to Mr. Puccetti's request(s)/appeal, the University advised that all existing responsive documents were provided; it also ultimately explained that his grievance hearing was not recorded, apparently due to human error, which is why no responsive audio recording exists. The agency now finds itself in the position of having to "prove a negative" in order to conclusively refute Mr. Puccetti's belief that such a recording and/or additional documents pertaining to his grievance hearing not only should exist, but actually do. Addressing this dilemma, in Bowling at 340-341, the Kentucky Supreme Court observed "that before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist." In a series of decisions issued since Bowling , this office has been obliged to affirm public agency denials of requests based upon the nonexistence of responsive public records in the absence of a prima facie showing that records being sought existed in the possession of the agency. See, e.g., 06-ORD-042; 07-ORD-188; 08-ORD-189.
This office has noted that "a record's existence can be presumed" at the administrative level "where statutory authority for its existence has been cited or can be located." In order to ensure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective," Bowling at 341, this office further held that "the existence of a statute, regulation, or case law directing the creation of the requested record" creates a rebuttable presumption of the record's existence, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4. The University did exactly that in denying the existence of the audio recording, albeit belatedly. Mr. Puccetti has not provided any objective proof that a recording was actually created (or improperly destroyed) in this particular case nor has any specific legal authority been cited or independently located to conclusively refute the University's position that human error is the reason for the lack of a recording (otherwise required under Section 4, above) and that no existing responsive documents have been withheld.
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:
Gregory P. PuccettiSherri F. PawsonAngela D. Koshewa
Footnotes
Footnotes
1 Although e-mail is not included among the permissible methods of submitting a request identified at KRS 61.872(2), a public agency can waive this requirement expressly or by a course of conduct, by responding without objection, as U of L did here. 07-ORD-064, p. 2; 07-ORD-222.
2 Ms. Pawson correctly advised that many of the records being sought were "education records" (defined at § 1232g(a)(4)(A)) and the University could therefore properly withhold the records under the Family Educational Rights and Privacy Act of 1974 (FERPA), codified at 20 U.S.C. § 1232(g), et seq. , incorporated into the Open Records Act by operation of KRS 61.878(1)(k), and the University's Student Records Policy implementing FERPA, if requested by a third party, but released them to Mr. Puccetti "as the responsive education records are [his] education records."
3 Though a request for clarification is not a denial, it seems unlikely, based on the limited information provided, that identifying and locating at least some responsive meeting notices and minutes would have necessitated an exhaustive search; likewise, it seems that a reasonable search could have been conducted for e-mails between Mr. Puccetti, the Student Grievance Officer, and/or the members of the Grievance Committee pertaining to his grievance.
4 Mr. Pucetti quoted Section 4 of the Graduate Student Academic Grievance Procedure, entitled Hearing Process, which provides:
2. All statements during the information-exchange phase of the hearing will be tape-recorded. This record will be preserved in the University Archives for a minimum of five years and shall be confidential.
See 2013-2014 University of Louisville Graduate Catalog, http://louisville.edu/graduatecatalog /toc.
5 Ms. Pawson clarified in response to Mr. Pucetti's appeal that she did not invoke KRS 61.872(6); rather, she used the language "overly burdensome" in attempting to explain why she needed Mr. Pucetti to narrow portions of his request. Because the University did not deny access to any records or portions thereof on the basis of this exception, further discussion is unwarranted.
6 Records Series U0644 may contain "grievance forms; notices of grievances; grievance responses; informal discussion notes; formal hearing notes including audio or video tapes; any supporting documentation; final summary statements; settlement agreements, appeals documentation and related records." This office must assume that any search encompassed the Grievance File.