Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Louisville Metro Councilmember Barbara Shanklin subverted the intent of the Open Records Act, short of denial of inspection as contemplated by KRS 61.880(4), 1 in the partial denial of Pat Thurman's August 26, 2013, request for records relating to "the $ 1 million Weed and Seed federal grant." Although Councilmember Shanklin made available to Ms. Thurman responsive email concerning the grant two weeks after Ms. Thurman submitted her request, she denied the remainder of the request with the exception of item one for which she provided a narrative response but no records. Her disposition of the request, and the Metro Government policies supporting that disposition as implemented here, subverted the intent of the Open Records Act.
In her August 26 letter, which she addressed to Councilmember Shanklin, Ms. Thurman requested access to:
1. Verifiable, official documentation stating the name of any person with whom you spoke in the Abramson administration re: the Weed and Seed grant;
2. Any official communication-e-mail, memo, letter, etc. from the Abramson administration to you re: the Weed and Seed grant;
3. Documentation authorizing one individual to have control over the items listed below in the $ 1 million Weed and Seed federal grant.
To wit:
a. Your niece, Diana Walker, wrote the Weed and Seed grant,
b. Your niece, Diana Walker, Administered the grant,
c. Your niece, Diana Walker, served on the $ 1 million Weed and Seed oversight committee,
d. Documentation stating the amount of money your niece, Diana Walker, earned for administering the grant.
Also, official documentation indicating:
4. a. a list of all members of the Weed and Seed oversight committee and,
Louisville Metro Council Open Records Coordinator Lisa Franklin Gray promptly responded to Ms. Thurman's records application, on Metro Council letterhead, at the request of Councilmember Shanklin. Ms. Gray advised Ms. Thurman that she had "contacted Metro Technology Department to conduct a search of the listed councilmember's email account," and that "upon completion of the search, this office will provide any responsive records to the councilmember which she in turn will need to review for any applicable exemptions. " In closing, Ms. Gray notified Ms. Thurman that "all responsive records will be available . . . on September 16th after 1 p.m. in the offices of the Louisville Metro Council Clerk." Shortly thereafter, Ms. Thurman initiated this appeal questioning the decision to postpone access while Councilmember Shanklin reviewed the records.
In supplemental correspondence directed to this office, Assistant Jefferson County Attorney Brianda Rojas responded "on behalf of Louisville Metro Counsel," acknowledging receipt by "Metro Council" of Ms. Thurman's request and noting "Metro Council's" timely written response. Ms. Rojas commented on Ms. Thurman's failure to await final action by the Metro Council, suggesting that her appeal was premature and that the issues presented should be treated as moot per 40 KAR 1:030 Section 6. 2 Ms. Rojas attached to her response a copy of Ms. Gray's September 16, 2013, letter to Ms. Thurman in which Ms. Gray notified Ms. Thurman of the availability of "results . . . gleaned from the Metro Technology inquiry" into Ms. Thurman's request for official communications from the Abramson administration to Councilmember Shanklin "re: the Weed and Seed grant," and provided Ms. Thurman with a narrative response to her request for "verifiable, official documentation stating the name of any person with whom Councilmember Shanklin spoke in the Abramson administration re: the Weed and Seed grant." Ms. Gray denied the remainder of her request, explaining that "Metro Council is not the Official Custodian of the records you seek" and identifying other Metro Government agencies that might maintain responsive records.
In response to this office's KRS 61.880(2)(c) 3 request for copies of Metro Council's KRS 61.876(1) 4 rules and regulations governing access to the records of Metro Council and records of individual councilmembers, and clarification of current policy and/or practice, Ms. Rojas again argued that Ms. Thurman's appeal was "entirely premature and improper because she had no grounds for an appeal." She provided this office with the requested "rules and regulations" for Metro Council and for individual councilmembers, explaining:
Each individual councilmember as an elected official is considered a "public agency" and is the "official custodian" as to their records. KRS 61.870. When a request is submitted to an individual council person or only involves the individual councilmember, the Open Records Coordinator confers with the councilmember and pursuant to the councilmember's instruction the Coordinator prepares a response to the request for the councilmember's review and approval.
Ms. Rojas noted that Ms. Gray, as Open Records Coordinator, defers to the individual councilmember's decision "as to what exemptions will be claimed or not" as to their records and that those decisions are guided by "KRS 61.878, opinions rendered by the Attorney General, and applicable case law."
In response to our questions concerning the paucity of records produced after the two week delay, Ms. Rojas acknowledged that a response of "'no records' would have been more appropriate where the requester was referred to the actual custodian of the records (if any)." Continuing, she observed:
[W]e will re-verify with Councilmember Shanklin and members of her staff to determine whether they possess any responsive records. Please understand that payroll and employment records for Metro employees are exclusively maintained by Metro Human Resources. Thus, Metro Human Resources is the official custodian of employment records.
In response to our final question, in which we ask about the existence of any responsive records deemed exempt by Councilmember Shanklin, Ms. Rojas emphasized that "all relevant records . . . were copied and placed onto a CD . . . [and] no exemptions [were] claimed on any of the relevant documents." Again, she urged this office to treat Ms. Thurman's appeal as moot. We are unable to do so for the following reasons.
40 KAR 1:030 Section 6 authorizes the Attorney General to treat the issues presented in an open records appeal as moot "[i]f the requested documents are made available to the complaining party after a complaint is made." Councilmember Shanklin produced "all relevant records meeting" the second item in Ms. Thurman's request and provided a narrative response to the first item. She did not produce the other records to which Ms. Thurman requested access. As this office has frequently observed, "an agency's inability to produce records due to their apparent . . . lack of possession is tantamount to a denial," see, e.g., 13-ORD-153, p. 2-3, and an agency response that is largely postulated on this assertion does not moot the issues on appeal.
Nor do we agree with Councilmember Shanklin that Ms. Thurman's appeal was "entirely premature. " In addition to the duty imposed on the Attorney General by KRS 61.880(2) "to review a public agency's denial of a request," KRS 61.880(4) imposes on the Attorney General the duty to "subject to the same adjudicatory process as if the record had been denied" an appeal based on the requester's belief that "the intent of KRS 61.l870 to 61.884 is being subverted by an agency short of denial of inspection . . . ." Upon review of Councilmember Shanklin's August 30 response, authored by Metro Council Open Records Coordinator Lisa Franklin Gray, Ms. Thurman believed that the intent of the Act was being subverted by the decision to postpone access while Councilmember Shanklin reviewed the records for the apparent purpose of determining what records were relevant and whether any relevant records were exempt. The issue of timely access to public records is one that frequently arises under KRS 61.880(4), and we decline Councilmember Shanklin's request that we treat Ms. Thurman's appeal as premature.
Turning to the issues presented in this appeal, we find that although the written policy governing access to records of individual councilmembers facially complies with the requirements of KRS 61.876(1), that policy, as applied in the appeal before us, subverted the intent of the Open Records Act by impeding timely access to the requested records.
Metro Council takes the legally justified position that each Metro Councilmember is the official custodian of his or her public records. This position finds support in KRS 61.870(1)(a) which defines the term public agency, as used in KRS 61.872 to 61.884, to include "[e]very state or local government officer." To the extent, however, that each councilmember is official custodian of his or her public records, the latter term must include "all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of, or retained by a public agency ." KRS 61.870(2) (emphasis added). Thus, records that reside in the Metro Council Business Office, the Metro Office of Management and Budget, and the Metro Louisville Human Resources Department, but that are also "used, in the possession of, or retained" by the individual councilmember are public records of that councilmember.
It was, and is, therefore incumbent on Councilmember Shanklin to review records that she or her staff used, possessed, or retained, and that related to the federal grant for the Weed and Seed program, and/or the program itself, and thereafter afford Ms. Thurman access to all nonexempt records responsive to her request. "There is no specific exception in the Open Records Act, " this office has often noted, "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 90-17 p. 2 cited in 93-ORD-65; 94-ORD-121; 97-ORD-87; 11-ORD-149 (and additional authorities cited therein). As noted at page 3 of 11-ORD-149, "an agency cannot avoid its duties under the Open Records Act by deferring to another agency . . . ." Although Ms. Rojas indicated that additional inquiry would be made into the existence of records used, possessed, or retained by Councilmember Shanklin that are responsive to Ms. Thurman's request, no such documented efforts have, to date, been made.
Ms. Thurman questions the ability of the individual councilmembers to fairly and objectively assess the exempt or nonexempt status of public records over which they are official custodian. Her concerns echo those recently expressed by the Kentucky Supreme Court. In City of Ft. Thomas v. Cincinnati Enquirer, -- S.W.3d --, 2013 WL 4609021 (Ky. ), p. 6, the Court observed:
Open Records Act disputes are notorious, of course, for posing unique challenges to our usually adversarial method of dispute resolution. Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). Whereas in most disputes both sides have more-or-less equal access to the relevant facts, so that factual assertions and legal claims can be adversarially tested, in ORA cases only the agency knows what is in the records.
As a means of addressing this challenge, the court suggested that a public agency "should provide the requesting party and the court with sufficient information about the nature of the withheld record (or the categories of the withheld records) . . . to permit the requester to dispute the claim and the court to assess it." Id. In our KRS 61.880(2)(c) inquiry, we asked Councilmember Shanklin to provide an index correlating any records withheld with the claimed exemptions. Councilmember Shanklin responded that no "relevant record was withheld. " Unless Ms. Thurman possesses proof that the councilmember's averment is false, and that responsive records were willfully withheld, 5 we assign no error.
We do, however, assign error to Councilmember Shanklin for failing to afford Ms. Thurman timely access to the records identified in her request. The record on appeal does not indicate the number of official communications Metro Technology recovered in its search of "the listed councilmember's email accounts," or describe any difficulties associated with retrieval. We must, therefore, assume that the majority of the two week delay in producing the records was attributable to Councilmember Shanklin's review of the correspondence for applicable exemptions, none of which were apparently found. As noted, we find no error in the designation of each councilmember as official custodian of his or her records, but are troubled by the delays this practice occasions. 6
In a line of open records decisions, this office has opined:
"The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1). Contrary to [the agency's] apparent belief, the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
Additionally, we note that in OAG 92-117 . . . this office made abundantly clear that the Act "normally requires the agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request ." OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented." OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 82-300, p. 3; see also 93-ORD-134 and authorities cited therein.
01-ORD-140, pp. 3-4 (emphasis added); cited in 12-ORD-151, p. 3-4.
The parameters of Ms. Thurman's request were not broad. Metro Technology searched Councilmember Shanklin's email accounts for records relating to a single grant and associated program denominated "Weed and Seed." The record on appeal does not suggest that this was a time-consuming process. Once the responsive records were compiled, Councilmember Shanklin had only to review the records for applicable exemptions. We find that the resulting two week delay was excessive. We urge Metro Council to revise its open records policy, as it relates to individual councilmembers, with the goal of streamlining the process to expedite agency disclosure of records responsive to open records requests. 7
In closing, we note two additional violations committed by Councilmember Shanklin in responding to Ms. Thurman's request. The first violation arises from her attempt to restrict Ms. Thurman's hours of access to the responsive records. In the response issued by Ms. Gray, on behalf of Councilmember Shanklin, Ms. Gray advised Ms. Thurman that the records would be available "after 1 p.m. in the offices of the Louisville Metro Council Clerk . . . ." Again, it is widely recognized that "any attempt to limit the period of time within which the requester may inspect public records places 'an unreasonable and illegal restriction' on the requester's right of access." OAG 80-641, p. 3, 98-O RD-69; 07-ORD-048. KRS 61.872(3)(a) mandates public access to agency records "during the regular office hours of the public agency" and any attempt "to minimize the commitment of time and burden on the public agency, " 98-ORD-69, p. 6, violates that provision of law.
Finally, we find that although it was to Councilmember Shanklin's credit that she provided a narrative response to Ms. Thurman's request for "verifiable, official documentation stating the name of any person with whom [she] spoke in the Abramson administration re: the Weed and Seed grant," her failure to produce responsive records, or to advise Ms. Thurman that no responsive records exist, constituted a violation of the Open Records Act. Consistent with the long held position that "[a]n agency's inability to produce records . . . is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms," 01-ORD-38, p. 9, cited in 13-ORD-153, Councilmember Shanklin was obligated to produce records identifying any person in the Abramson administration with whom she spoke about the grant or to notify Ms. Thurman that no records responsive to her request exist. While it is not our intention to discourage the free flow of information by whatever means, we find that Councilmember Shanklin's failure to produce responsive records for Ms. Thurman's inspection, or to advise Ms. Thurman that she possessed no responsive record, constituted a violation of 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.
# 327
Distributed to:
Pat ThurmanBarbara ShanklinLisa Franklin GrayBrianda A. Rojas
Footnotes
Footnotes
1 KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
2 40 KAR 1:030 Section 6 states:
If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter.
3 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.)
4 KRS 61.876(1) states:
Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
(a) The principal office of the public agency and its regular office hours;
(b) The title and address of the official custodian of the public agency's records;
(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies;
(d) The procedures to be followed in requesting public records.
5 If Ms. Thurman possesses proof of willful concealment, her recourse lies in the criminal courts. KRS 61.991(2)(a).
6 The Metro Council makes repeated reference to the fact that, as of its last correspondence, Ms. Thurman had not retrieved the CD containing official communications responsive to one of her four requests. Although Ms. Thurman has not responded to this claim, it is probable that she is awaiting receipt of this open records decision for resolution of all, and not just one, of the issues on appeal. Ultimately, of course, it is not Ms. Thurman's actions, but those of Councilmember Shanklin that are under review.
7 Additionally, we urge Metro Council to clarify its policy and practice so as to avoid confusion arising from the Open Records Coordinator's interchangeable use of the term Louisville Metro Council with that of the names of the councilmember on whose behalf she is responding. If, indeed, the goal of the policy is to differentiate council records from the records of individual councilmembers, this casual use of terminology produces great confusion vis-a-vis whose records are the subject of the request, whose records were searched, under whose authority records are deemed exempt, and under whose authority the "agency" response is issued.