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 Board of Education of Spencer County violated the Open Records Act in its disposition of Todd Bonds' multiple requests for copies of various e-mails. For the reasons that follow, we find no violation of the Act.
Mr. Bonds' first request was dated November 4, 2013. Essentially he alleges on appeal that some e-mails were inadvertently omitted from the Board's original response but were located and produced several days later. We find this portion of the appeal moot inasmuch as the records have been provided. 13-ORD-001; 04-ORD-046; 03-ORD-087; OAG 91-140.
The second request at issue was mailed by Mr. Bonds on November 21, 2013, although it bore the date of his previous request. He sought a copy of "[a]ll email conversations forwarded from Charles Adams to law local [ sic ] enforcement such as the Spencer County Sheriff's Department and the Taylorsville Police Department." On December 2, 2013, 1 Board attorney Grant R. Chenoweth responded that no e-mails had been forwarded by Mr. Adams to local law enforcement. In subsequent correspondence, Mr. Bonds clarified that he meant "forwarded" in a broad sense, including sending a hard copy, and Mr. Chenoweth replied that no e-mails had been sent by Mr. Adams to local law enforcement by any means.
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 do not exist.
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 Board's representation that no e-mails were forwarded by Mr. Adams to local law enforcement. 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). We therefore find no violation of the Open Records Act in regard to Mr. Bonds' second request.
In the third request, dated December 27, 2013, Mr. Bonds asked for the following items in issue:
Hard copies of the materials Charles Adams gave to/showed to or suggested as evidence to law enforcement suggesting that Todd Bonds be arrested or used to try to procure a protection order with. Please include any hard copies of responses from law enforcement or the disposition of said meeting.
?
? All emails between Charles Adams and anyone whose email address ends with "@wv.kyschools. us[.]"
As to the second item requested, Mr. Chenoweth responded on January 3, 2014, that no such records existed. For the reasons already stated above, in the absence of a substantial indication that responsive e-mails do exist, we find no violation of the Open Records Act in the Board's response to this item.
As to the first item of the third request, Mr. Chenoweth responded that there was "no document reflecting any response by any law enforcement officer regarding any meeting with Superintendent Adams relating to you," and the remainder of that item constituted a request for information rather than records. Specifically, Mr. Chenoweth argued that Mr. Bonds was seeking "the mental impressions and memory of Superintendent Adams" regarding what documents he had shown to law enforcement personnel. In his March 18, 2014, response to the appeal, Mr. Chenoweth clarified:
There remains no record or list which identifies the documents which Superintendent Adams may have had in his possession during any meeting with a law enforcement officer, and Superintendent Adams is under no obligation to attempt to recreate a collection of documents based on his memory. To be clear, the agency is not withholding any records from Bonds--all of the possible records responsive to the request are email communication which were exchanged with Bonds using either his personal or business email accounts. Instead, the agency has declined to provide Bonds certain information, insofar as Bonds is seeking to have Superintendent Adams identify which of these records were shown by Adams to a law enforcement officer.
(Emphasis in original.)
Requests for information are outside the scope of open records law, and an agency is not obligated to honor a request for information under the law. 02-ORD-88; KRS 61.870 et seq. The Kentucky Open Records Act addresses requests for records, not requests for information. 03-ORD-028. In 95-ORD-131, the Attorney General observed:
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request.
Furthermore, a public agency is not required to compile a list or to create a record in response to an open records request. ( See 12-ORD-026 and authorities cited therein.) Accordingly, this response did not violate the Open Records Act.
The fourth and final letter, dated February 1, 2014, initially duplicated the December 27 request for "[a]ll emails between Charles Adams and anyone whose email address ends with '@wv.kyschools. us." On February 3, 2014, however, Mr. Bonds amended this request to read:
all emails sent from any address that ends with "@spencer.kyschools. us" sent/received/forward to/from any address that ends "@wv.kyschools. us" from July 1, 2012 until January 31, 2014[.]
Mr. Chenoweth responded on February 6, 2014, raising more than one basis for denial of this request. First, he contended that it was not a proper request because it did not "precisely describe[] records which are readily available within the public agency, " as required by KRS 61.872(3)(b). Citing prior decisions of the Attorney General, he argued that the lack of specificity might preclude the records custodian from determining what records were encompassed by the request.
We find that the request is comprehensible and self-explanatory. As Mr. Chenoweth summarized it in his February 6, response, "you seek email correspondence which contains certain domain names as either the senders or recipients of emails for a nineteen (19) month period." Since the request gives a time frame, a type of records, and an identified class within that type of records, it does not fail the requirement of a precise description. "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). The mere fact that "responsive records are widely dispersed and difficult to access," in the agency's words, does not negate the sufficiency of the request. A public agency "should not be able to rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request."
Com. v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008).
The agency's second basis for denial is that producing the e-mails would pose an unreasonable burden pursuant to KRS 61.872(6). Since this argument depends upon a detailed factual description, we quote Mr. Chenoweth's February 6 response at some length:
Notwithstanding the lack of sufficient particularity in your request, the agency's Chief Information Officer (CIO) was requested to undertake the task of identifying responsive records. Through a search of the electronic mail server hosted by the Kentucky Department of Education and mandated for use by all Kentucky public school districts, the agency's CIO was able to generate search results identifying more than 6,200 records which met the search parameters. In order to move from those search results to actual production of records, the CIO would have to identify each email user in the Spencer County Public Schools whose account correlated with each item, access that user's email storage file, and then locate and print each record which was identified in the search. [Footnote omitted.] From there, other agency staff would have to review each specific record to ascertain whether it related to an individual student so as to fully exempt the record from disclosure under the Open Records Act by the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, et seq. , and/or the Kentucky Family Education Rights and Privacy Act (KyFERPA), KRS 160.700, et seq. , under KRS 61.878(1)(k) and/or (l), or any of the discretionary exceptions, including KRS 61.878(1)(a), (h), (i) and (j), or whether the record merely contained private information which would require redaction under KRS 61.878(1)(a) prior to disclosure of the non-exempted material in the same records. This process would be significantly time consuming, as each record would have to pass through the hands of more than one agency employee in order to accomplish the process. Because of the mandatory nature of the privacy provisions of FERPA and KyFERPA, and the large number of records which would therefore require individualized review, the agency submits that your request is subject to the identical analysis made by the OAG in 11-ORD-173. There, the request only sought emails relating to the accounts of three (3) specifically named agency employees for a shorter time period than covered by your request, and the OAG determined that the request posed an unreasonable burden on the agency.
Moreover, even upon completion of this process, the agency would be unable to verify that the records thus procured were fully responsive to your broadly worded request, as agency staff are not required to maintain electronic mail records in the electronic mail server. Individual employees are permitted to maintain electronic mail on their individual workstations or on a shared network drive (but not in the email system) which is possible in more than one electronic format (.pst, .pdr, and .html are but three examples of viable file types). Individual employees would also be permitted to maintain an electronic mail message in hard copy without retaining the electronic version. See Public School District Records Retention Schedule (KDLA 2012), Record Series L5303 (permitting official correspondence to be maintained in paper or electronic form); Guidelines for Managing Email in Kentucky Government (KDLA 2005) (permitting off-line retention of records generated by an electronic mail system). Thus, in order to be fully responsive to your request, agency staff would be required to search each employee's workstation and the shared network drive for any electronic document fitting the broad parameters of your request which are stored outside the email system, and would have to review every paper of every file in every office of the district in order to determine whether any emails responsive to your request have been printed for retention off-line in paper format.
In view of precedent, it does appear substantially burdensome that at least 6,200 e-mails between two school systems must be reviewed by multiple employees to ascertain and address any content protected by FERPA or its state counterpart. KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
A claim of unreasonable burden requires the weighing of the competing interests of public access to agency records and the agency's own interest "in effectively executing its public function." 00-ORD-72 (citing 96-ORD-155).
FERPA prohibits disclosure of personally identifiable student information from records maintained by educational institutions without the written consent of the student or parent. As noted by Mr. Chenoweth, in 11-ORD-173 we considered "compelling" a school district's argument that the sheer volume of records, coupled with the mandatory nature of FERPA confidentiality, imposed an unreasonable burden where three superintendents and their legal counsel would have been required to scrutinize at least 8,500 e-mails "to avoid inadvertent disclosure of information protected under FERPA (violation of which results in forfeiture of federal funding)." This process would have required these individuals to "devot[e] their entire time and attention" to reviewing e-mails "for days or weeks," a task which could not be delegated to other personnel because "only these personnel would know the nature and content of these emails. " 11-ORD-173. Mr. Chenoweth urges that the facts and issues in this case are essentially the same.
In terms of the "time and manpower" required to conduct such a review, this case is comparable to 11-ORD-173. While approximately 6,200 e-mails may be at issue here as compared to 8,500, the request in this case is not limited to communications of superintendents as in 11-ORD-173. Communications of lower-level employees would foreseeably require FERPA review not only by those employees, but by supervisors as well as legal counsel, which could reasonably multiply the time and effort even beyond that required in 11-ORD-173. As in that case, the personal knowledge needed for a FERPA review would similarly tend to preclude delegating that function to other personnel. We therefore believe the similarity between the two cases is such that the reasoning in 11-ORD-173 (copy attached) extends to the facts of this appeal.
We do not retreat from the general rule that no unreasonable burden is posed merely by the "tedious and time-consuming work" resulting from the fact that a public agency is statutorily "obligated to sift through any requested materials in order to determine which documents (or portions of a document) must be redacted or excised." Chestnut, supra, 250 S.W.3d at 664. In this case, however, to the extent that "the time and manpower required to fulfill Mr. [Bonds'] request is not a function of inefficiencies in its record keeping system," but rather the result of "the expansive scope of his request and the need to identify and redact all FERPA information," the agency has offered clear and convincing evidence of an unreasonable burden under KRS 61.872(6). 11-ORD-173 (brackets omitted). Thus, we find no violation of the Open Records Act by the Spencer County Board of Education.
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:
Mr. Todd A. BondsGrant R. Chenoweth, Esq.
Footnotes
Footnotes
1 Mr. Bonds makes clear in his appeal that he is not alleging an untimely response to this request.