Opinion
Opinion By: Jack ConwayAttorney GeneralJames M. HerrickAssistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Education and Workforce Development Cabinet violated the Open Records Act in the disposition of Tom Stone's request for records from the Office of Vocational Rehabilitation ("OVR") and the Office of the State ADA Coordinator ("ADA") made on August 5, 2014. For the reasons that follow, we find no violation of the Act.
Original and amended requests
The procedural history of this appeal is somewhat involved. On July 29, 2014, Mr. Stone made a series of open records requests by e-mail to OVR and ADA, which initiated some e-mail discussion between Mr. Stone and Education and Workforce Development Cabinet staff attorney Patrick B. Shirley. On August 1, 2014, Mr. Stone informed Mr. Shirley by telephone that some of his requests had been mooted by intervening events, and asked Mr. Shirley to send him a list of all requests he had made to OVR and ADA, indicating that he would review them and decide what he still needed. Mr. Shirley e-mailed Mr. Stone a compiled list of his requests that same day.
The requests made to OVR were listed as follows. Although the original list was not numbered, we have added numbers for the sake of convenience:
-1. All of the financial records associated with vocational rehabilitation on Juneau drive for the last 10 years.
-2. All of the employee files including pay, days worked, trainings, complaints, etc. for the last 10 years.
-3. All records about handicap parking outside of the Voc rehab office.
-4. All records available for CHTH and Associates for the last 10 years.
-5. All emails between the staff on Juneau drive and all other state and government agenc[ie]s for the last five years.
-6. All employee records for all employees assigned to your location (Juneau Drive) for the last 3 calendar years including pay rate and histories, qualifications, resumes, and applications commendations and reprimands
-7. All e-mails to or from all employees based at your location for the last 60 days
-8. All complaints logged on or to all employees at your location for the last 3 years.
-9. All records of all attempts to monitor, provide and maintain handicapped parking at your location that assists your primarily handicapped clientele.
-10. All expenditures, (including bills and payment records), to non-governmental entities for the last 12 calendar months requested, approved, spent by or for your location and on behalf of any and all clients assigned to your location for the last 6 calendar months
-11. Records evidencing all government required posted notices at your location
-12. The state requirements for the office of vocational rehabilitation to lease properties. This would mean the minimum standards the properties have to fulfill to be in compliance with, especially ADA, accessibility etc.
-13. The leases and associated records for all of the properties leased for the office of vocation rehabilitation services in Jefferson County for as far back as you have records.
-14. All of the requests for maintenance, updates, upgrades needed to be in compliance with changing laws etc. for all properties OVR has leased in Jefferson County for as far back as records are kept.
-15. All inspections, complaints, citations for deficiencies etc. and associated records by all State, Federal and local officials for all of the OVR properties in Jefferson County to ensure that they remain safe and in compliance with all applicable laws.
-16. All records of all communications to or from federal state or local officials having to do with compliance, property complaints, and deficiencies etc. for all OVR properties IN [sic] Jefferson County.
-17. Can you please provide me with the employment records for inspection, of all employees of the office of vocational rehabilitation, including all support staff, all associated staff, such as yourself and all department staff that hold records for and on behalf of OVR that could be available to assemble records for an open records request, particularly the requests I have made to date.
-18. Any and all of the Kentucky Cabinet Education and Workforce Development Cabinet, Office of Vocational Rehabilitation, accessibility checklists, completed for all Jefferson County Offices for as far back as you have retained records.
-19. Please do the same for the records that mandate all records that are to be maintained and stored at the physical location of each Voc Rehab office
Mr. Stone's requests to ADA were listed as follows:
-Could you please have all of the records you relied upon to approve the Voc Rehab Kentucky State Office on Juneau Drive closing their accessible entrance to handicapped citizens at the government center where the State of Kentucky pays the rent, canceling their handicap parking and turning it into employee parking and entrance only made available for inspection.
-Can you also have all of the records made available that evidence your official actions, verify your trips (including all State staff associated) and inspections at that location (expenses etc.) and all reports, memos etc. created that are connected with the Kentucky office for the ADA approval etc. endorsing the closing of the handicapped accessible entrance and parking to the handicapped citizens of Kentucky.
-Could you please have all of the records associated with the Voc rehab office on Juneau drive for as far back as you have them made available for inspection and copying both hard copy and electronic and phone records. I'm especially interested in the state-mandated assessments made by your office for state agencies to move into and remain in rental properties.
-I would also like all of the state assessments for rental properties to determine ADA compliance for Jefferson County made available.
-I'd like all available phone records for the last six months
-Could you please have all records of all communications with all of the owners (past and present) of the building on Juneau drive, including all information on the owners and the leases and what ever else you have for as far back as you have records made available for inspection and copying. This and the other request includes all communications about that property, whether it be with the office of Voc Rehab and [ sic ] everyone else.
On August 5, 2014, Mr. Stone e-mailed Mr. Shirley, making some cancellations and changes to his requests as follows:
Cancel number one. [A]mend number two, employee files training qualifications complaints.
Leave number three.
Delete numbers 4, 5, 6 and 7.
Leave number eight and nine intact.
Delete number 10.
Leave number 11 and 12 intact.
Limit number 13 only into [sic] the building on Juneau drive.
Leave number 14 and 15 intact.
Number 16 limit it to Juneau location.
Number 17 delete unless you're going to request a lot of time to produce.
Number 18 limit it to Juneau location.
Delete number 19
Leave all of the requests to the ADA office intact.
You can treat this as a new request, received today. I think that's fair given the circumstances.
(Emphasis added.)
Responses by OVR and ADA
On August 8, 2014, Mr. Shirley answered the remaining requests to OVR. He stated that "[r]ecords will be made available to you" for items 2, 11, 13, 14, 15, and 16. As to items 3 and 9, having to do with handicapped parking at Juneau Drive, Mr. Shirley indicated that no records were available because OVR was only a lessee of the building and any such records would belong to the property owner. As to item 8, he stated:
[T]here is no official log of complaints. To the extent that an OVR consumer has a complaint concerning an OVR counselor or employee it may be documented in the consumer file, which is confidential pursuant to 34 CFR 361.38.
Regarding item 12, Mr. Shirley responded that "state legal requirements for ADA compliance are contained in federal or state statutes or regulations and are not a 'public record' as defined under the Kentucky Open Records Act. " Lastly, as to item 18, he stated that the accessibility checklists "are located in the State ADA Coordinator's office [and] will be made available to you through the open records requests made to that office." He added that the disclosable records would be available for viewing during business hours on any day, starting the next business day.
Also on August 8, 2014, Cabinet attorney James C. Maxson e-mailed Mr. Stone on behalf of ADA as follows:
I will be responding to your request on behalf of the Office of the State ADA Coordinator. I will need you to provide me with an address where I can send the responsive documents as well as an invoice for all associated fees and charges. Your original request did not contain such.
Mr. Stone immediately responded, stating that Mr. Maxson had "already subverted the Open Records Act by failing to respond in a timely manner" and "this will be the only correspondence you get before the notice of appeal from the Att. Gen.'s office."
Appeal
Mr. Stone initiated this appeal on September 7, 2014. He complained that the final response of behalf of ADA should have been made by Mr. Shirley instead of Mr. Maxson; that Mr. Maxson had "refuse[d] me an on-site inspection" and attempted to charge him for the records instead; and that it was improper for OVR to "hide employee records, (complaints) in client files and then claim HIP[A]A violation/protection."
We first address Mr. Stone's objections to Mr. Maxson's response. First, there is nothing in the Open Records Act that requires a particular individual to make the response to a request for records. Mr. Shirley, in responding to this appeal, states that "James Maxson typically answers record requests that are made to the State ADA Coordinator's office"; nothing prohibits his doing so in this case as well. Secondly, as Mr. Shirley explains:
Mr. Maxson did not deny Mr. Stone's requests. He simply sought payment for the records prior to sending them to Mr. Stone, as he lives outside of Franklin County. The ADA records were not as voluminous as OVR records. If Mr. Stone wanted to inspect the ADA records all he had to do was indicate this to Mr. Maxson. Therefore, he was not denied an on-site inspection, and there was no attempt to charge him for records he wanted to inspect.
Furthermore, Mr. Maxson states on appeal that he assumed Mr. Stone wanted "to inspect documents via mail, as that is how the vast majority of requests are handled, however, [the response] did not foreclose on-premises inspection, if that is what Mr. Stone preferred." Mr. Stone's characterization of events is founded on a misunderstanding, to which he substantially contributed by immediately cutting off all discussion after the initial communication from Mr. Maxson. We find no violation of the Act by ADA in what was merely an attempt to seek further information. 13-ORD-104.
Turning to Mr. Shirley's August 8 response, we first decline to hold that the August 8 response was untimely, since it was made within three days of Mr. Stone's self-described "new request" on August 5. KRS 61.880(1) merely requires a disposition of an open records request to be made with three business days of receipt, which was done in this case.
As to those records which Mr. Shirley advised do not exist or are not in the agency's possession, we find no violation of the Open Records Act. 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.
Regarding Mr. Stone's request for state legal requirements for ADA compliance, this would constitute a request to perform legal research. It is well established that public agencies are not obligated to perform research by "locating relevant statutes and regulations pertaining to the subject of [a] request." 00-ORD-130. Furthermore, as Mr. Shirley pointed out, "legal research or reference materials? do not generally fall within the definition of a 'public record' codified at KRS 61.870(2), and therefore are not generally subject to the requirements of the Open Records Act. " 00-ORD-176. Therefore, this request was properly denied.
Lastly, we consider item 8 of the request to OVR, "[a]ll complaints logged on or to all employees at your location for the last 3 years." Mr. Shirley indicates that no complaints against employees at the Juneau Drive office were known by OVR to exist, but that any such complaints "would naturally go in the client file because they relate to disability services provided by OVR to the client," and the client files "are confidential pursuant to 34 CFR 361.38."
34 CFR 361.38 is a federal regulation dealing with the protection, use, and release of personal information by state agencies administering vocational rehabilitation programs. Subsection (b) provides that "[a]ll personal information in the possession of the State agency or the designated State unit must be used only for the purposes directly connected with the administration of the vocational rehabilitation program. Information containing identifiable personal information may not be shared with advisory or other bodies that do not have official responsibility for administration of the program." The regulation lists several categories of persons and entities to whom personal information may be disclosed, none of which would apply here unless Mr. Stone is a complaining individual who applied for services from the office.
While we recognize that personal information may not be released, a complaint made against an employee is not, in and of itself, personal information. Accordingly, the existence of personal information in client files does not warrant the total denial of a request to view a complaint on an OVR employee merely because the complaint may be kept in a client file. 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). Furthermore, 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).
OVR therefore had a duty to review any client files at the Juneau Drive location that were likely to contain responsive records. If complaints were found which contained personal information subject to confidentiality regulations, the correct approach would be to redact the confidential material. "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination." KRS 61.878(4). Therefore, we conclude that OVR erred by failing to conduct a search of the appropriate files for employee complaints.
Additionally, KRS 61.880(1) provides that "[a]n agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." Since OVR's response did not include a statement of KRS 61.878(1)(k), which authorizes withholding of "public records or information the disclosure of which is prohibited by federal law or regulation, " a procedural violation occurred.
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.
# 384
Distributed to:
Mr. Tom StoneJames C. Maxson, Esq.Patrick B. Shirley, Esq.