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' request for copies of e-mails and information, which was made on April 17, 2014. For the reasons that follow, we find that the Board's response was partially in violation of the Act.
Mr. Bonds' request was divided into four items, as follows:
1. All email conversations sent/received/forwarded to/from/between diana.thomas@spencer. kyschools. us and todd. bonds@spencer. kyschools. us
2. All email conversations sent/received/forwarded from an "@spencer. kyschools. us" address and an "@wv. kyschools. us" address from 7/1/2012 until 7/1/2013.
3. The amount of monies paid to Grant Chenoweth; his law firm; or any associates of his law firm since December 1, 2013.
4. All emails sent/received/forwarded to/from/between any "@spencer. kyschools. us" address with "Todd Bonds" in the subject or body from December 1, 2012 to present.
(Emphasis omitted.) The Board's attorney, Grant R. Chenoweth, responded on April 22, 2014.
Request item 1
With respect to item 1, Mr. Chenoweth asserted that no records existed. On appeal, he has clarified that one e-mail address identified by Mr. Bonds, todd. bonds@spencer. kyschools. us, had never 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. 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. If the e-mail address was incorrectly identified, this would adequately explain the lack of any responsive records.
Request item 2
A closer analysis is required for item 2. This portion of Mr. Bonds' request has been interpreted by the Board, and apparently was intended by Mr. Bonds, to mean all e-mail communications between the Spencer County and Walton-Verona school domains during the twelve-month period between July 1, 2012, and July 1, 2013. This is a more restricted version of an earlier request with which we dealt in 14-ORD-109. In that appeal, Mr. Bonds had asked for all e-mails between the two school systems over a 19-month period from July 1, 2012, through January 31, 2014.
In 14-ORD-109, the Spencer County Board of Education made two arguments in response: first, that the request did not "precisely describe[] records which are readily available within the public agency, " as required by KRS 61.872(3)(b); and second, that the request posed an unreasonable burden under KRS 61.872(6). The Board makes the same arguments in the present appeal. We rejected the first argument in 14-ORD-109 because the request "describe[d] the records in definite, specific, and unequivocal terms." 14-ORD-109 (quoting 98-ORD-17). Since the parties have interpreted this new request as identical to the earlier request, albeit with a more limited date range, we are compelled to reach the same conclusion, that Mr. Bonds' request described the records with sufficient precision under KRS 61.872(3).
As to the Board's second argument, however, we found in 14-ORD-109 that the Board had presented clear and convincing evidence that the request for 19 months of e-mails posed an unreasonable burden. Our finding was based on the Board's representation that "the agency's Chief Information Officer (CIO) was requested to undertake the task of identifying responsive records" and had generated search results identifying more than 6,200 responsive e-mails. Coupled with the fact that each e-mail would have had to be reviewed by multiple employees to determine whether it must be redacted under the Family Educational Rights and Privacy Act (FERPA) and its state equivalent, or contained other private information, the number of e-mails identified (over 6,200) satisfied the agency's burden of proof under the standard of clear and convincing evidence. (A copy of 14-ORD-109 is attached for further reference.)
In the present appeal, however, a crucial piece of evidence is absent from the Board's case. Mr. Chenoweth's April 22 response did not indicate that the CIO had attempted to identify responsive records. Rather, he stated only that "it is believed potentially responsive records can be identified through a search of the electronic mail server hosted by the Kentucky Department of Education," and that "it is anticipated several thousand records would be identified as meeting the initial search parameters." (Emphasis added.) The Board did not, as in 14-ORD-109, make the actual effort to identify a minimum number of responsive e-mails.
A public agency has the duty "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested[.] Thus, the agency must expend reasonable effort to identify and locate the requested records." 95-ORD-96 (internal quotation marks omitted). It is incumbent on the Board, as the party bearing the burden of proof by clear and convincing evidence under KRS 61.872(6), to make a reasonable effort to ascertain the number of responsive records it claims to pose an unreasonable burden within the meaning of that provision. While it is entirely possible that an unreasonable burden may exist, we cannot make that determination because the Board has not presented clear and convincing evidence of its existence by conducting a search of the e-mail server as it did in 14-ORD-109. Thus, the response to item 2 was not in compliance with the Open Records Act.
Request item 3
We next consider item 3, the amount of money paid to the Chenoweth law firm, which Mr. Chenoweth correctly describes as a request for information. 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. Therefore, this portion of the request, as formulated, did not create an obligation of compliance under the Act.
Request item 4
Finally, item 4 pertains to all e-mails to or from Spencer County Schools addresses with Todd Bonds' name in the subject line or body of the message since December 1, 2012. Mr. Chenoweth's April 22 response made three objections to this request.
The first objection is that the request did not precisely describe the records under KRS 61.872(3)(b). In a response to this appeal dated May 12, 2014, Mr. Chenoweth compares Mr. Bonds' request to 06-ORD-004, in which a former employee of the Louisville Water Company requested "[a]ny and all written or electronic communications" about her to or from anyone within a certain period of time. (Emphasis omitted.) Mr. Bonds' request, however, does not ask for all types of communications, but only one identified category of records; namely, e-mails. This distinguishes it from 06-ORD-004, in which the water company would have been "required to review every record, 'regardless of physical form or characteristics,' ? during the specified timeframe." 06-ORD-004 (quoting KRS 61.870(2)). Thus, we find that the records were described with sufficient precision under KRS 61.872(3)(b).
The Board's second objection is that some of the records which would be responsive were already contained in its response to a prior request made on November 4, 2013, in which Mr. Bonds asked for e-mails between the superintendent and his assistant having "Invitation" or "district report card" in the subject line. The Board therefore argues that this is "a duplicative requests [ sic ] for the same records plac[ing] an unreasonable burden on [the] agency." We disagree that a request for all e-mails with "Todd Bonds" in the subject line or body of the message is a duplicate request. Nevertheless, to the extent that the Board has already provided certain records to Mr. Bonds under an earlier request, it may decline, with suitable explanation, to produce those again.
Lastly, the Board contends that some responsive records consist of communications seeking or rendering legal advice between Mr. Chenoweth's office and school district personnel. We have long recognized the applicability of the attorney-client privilege to open records requests. ( See 14-ORD-101 and authorities cited therein.) Accordingly, while Mr. Chenoweth's response should have cited KRS 61.878(1)(l) for the proposition, we agree that any confidential attorney-client communications may be redacted from the records produced.
Conclusion
In conclusion, we find that the Spencer County Board of Education did not violate the Open Records Act in regard to items 1 and 3 of Mr. Bonds' request. As to item 2, the Board has not presented clear and convincing evidence of an unreasonable burden. As to item 4, we find that the records sought were precisely described as required by the Act, but records already provided to Mr. Bonds and records subject to the attorney-client privilege need not be produced.
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.
Enclosure
Distributed to:
Mr. Todd A. BondsGrant R. Chenoweth, Esq.