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 University of Louisville violated the Open Records Act in the disposition of a request made by Gregory Puccetti on October 7, 2013. For the reasons that follow, we find that the University procedurally violated the Act, and in part committed a substantive violation.
In his October 7 communication to Senior Compliance Officer Sherri Pawson, Mr. Puccetti requested the following:
1) Copies of Records relating to "officially designated" bodies within the University, such as faculty Committees and Subcommittees especially within the Department of Urban and Public Affairs of the College of Arts and Sciences, to the extent that,
2) a) Such records might comprise catalogs, lists, rosters or other enumerations of "officially designated" bodies within the University, such as faculty Committees and Subcommittees especially within the Department of Urban and Public Affairs of the College of Arts and Sciences; or
3) As a function of such records, a person could reasonably determine:
On October 12, 2013, Ms. Pawson responded that she would "have a response for you early next week." On October 20, 2013, she sent Mr. Puccetti the following response:
It seems to me that this is a request for information couched in language of a request for records. The request asks for information/records that substantiate your conclusions as to the existence of "officially designated" as opposed to "bodies were not officially designated" seeking information rather than precisely described records. If you submit a request that gives detailed information regarding the documents you seek I can proceed to identify such records.
We note that the delay in giving a final response to this request was a procedural violation of KRS 61.880(1), which requires a written response to be issued within three (3) days, exclusive of weekends and holidays. In correspondence to this office, Ms. Pawson admits that the University was untimely in providing its response.
On October 21, 2013, Mr. Puccetti reiterated his October 7 request to Sherri Pawson in the same language, but made it applicable to "bodies that are not 'officially designated' within the University" as well as "'officially designated' bodies within the University." On the same day, however, he initiated this appeal to the Attorney General concerning the response to his October 7 request. Pursuant to KRS 61.880(2)(a) and 40 KAR 1:030, Section 1, the appeal has only been perfected as to the October 7 request, and accordingly only that request is properly before us for consideration.
We do not agree with the University's characterization of Mr. Puccetti's request as wholly equivalent to a mere request for information. Nevertheless, we recognize that the language of the request contains ambiguities and raises unanswered questions. The phrase "especially within the Department of Urban and Public Affairs of the College of Arts and Sciences," for example, is ambiguous as to whether it is meant to limit the scope of the request to that department. Also, it is not clear whether the phrase "officially designated, " used repeatedly in quotation marks, is meant to have a specific legal significance, is a phrase used by the University in its records, or is merely a characterization assigned by Mr. Puccetti.
With regard to 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). "Blanket requests for information on a particular subject without specifying certain documents need not be honored. " OAG 76-375. If a person "cannot describe [records] with specificity, there is no requirement that copies of any records must be delivered to him." Id.
This standard of precise description for records by mail 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 [as perhaps Mr. Puccetti was seeking with the phrase "officially designated" ] 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.
We recognize that some portions of Mr. Pucetti's request were so vague and open-ended that they failed to meet the requirement of a precise description of records. To some extent, however, part of his request did identify a discernible type or class of records that he was seeking. Specifically, he asked for "catalogs, lists, rosters or other enumerations of 'officially designated' bodies" within the Department of Urban and Public Affairs. This placed the burden on the University at least to disclose whether such an enumeration existed.
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 substantive duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Procedurally, however, it is "incumbent on the [agency] to so state in clear and direct terms," 01-ORD-38, and "a written response that does not clearly so state is deficient." 12-ORD-162 (emphasis omitted) (quoting 02-ORD-144). If no such list or enumeration exists, it is not the University's obligation to create one. See, e.g., OAG 89-45 (the Open Records Act "does not require public agencies to carry out research or compile information to conform to a given request"); OAG 76-375 (public agencies "are not obligated to compile a list or create a record to satisfy an open records request").
We also note an additional part of Mr. Pucetti's request on which the University should have taken further action. The request makes clear that the term "'officially designated' bodies" includes, if nothing else, faculty committees and subcommittees within the Department of Urban and Public Affairs. To the extent that Mr. Puccetti requested records from which it could be determined when and where these bodies met, what topics would be discussed, and what action taken, it is evident that the responsive records would include meeting schedules, agendas, and minutes. Thus, the request can be fairly construed as a request for all available meeting schedules, agendas, and minutes for faculty committees and subcommittees within the Department of Urban and Public Affairs. When at least some categories of responsive records can be identified from the request, a reasonable search for those records should be conducted. 13-ORD-168, n.3. This does not appear to have been done.
Thus, we find that the University procedurally violated the Open Records Act insofar as its response was untimely and it failed to address whether a list or enumeration of "'officially designated' bodies," as requested by Mr. Puccetti, in fact existed. A substantive violation was committed when the University failed to conduct a reasonable search for such records as were definitely, specifically, and unequivocally included in the scope of the request; i.e., any available meeting schedules, agendas, and minutes for faculty committees and subcommittees within the Department of Urban and Public Affairs.
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 proceedings.
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Distribution:
Mr. Gregory P. PuccettiJ. Fox DeMoisey, Esq.Ms. Sherri PawsonAngela D. Koshewa, Esq.