Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Bruce Tyler appeals the University of Louisville's denial of his February 21, 2015, request for "the full list of names and campus addresses and emails of . . . new black faculty and staff members." Mr. Tyler included with his request a copy of an invitation to a "Welcome Reception in honor of New Faculty and Staff" hosted by the Vice Provost for Diversity and International Affairs and the Chair of Pan African Studies and the Black Faculty and Staff Association. Mr. Tyler subsequently clarified that he "wanted the names of the faculty and staff who attended" the reception. The University denied Mr. Tyler's request based on the nonexistence of responsive records, explaining that "[a]ccording to folks in the Vice Provost for Diversity and International Affairs Office they no longer have a list of the invitees to this event." He thereafter appealed the University's denial.
In supplemental correspondence directed to this office, the University reiterated that the Vice Provost "no longer had a list of the invitees to this event," "[n]o responsive records were identified," and "the University cannot produce a record that does not exist." Continuing, the University observed:
There is nothing in our policies that require us to keep every record created at the University; actually the state's Retention Schedule exists to guide state agencies and universities on best practices in maintaining essential records. Very few of the categories of records are maintained permanently. Further, in the absence of Mr. Tyler providing specific details of why he believes the documents must exist, the University has made a good faith effort to produce the records he sought.
The University did not address Mr. Tyler's clarified request for the list of attendees at the University sponsored event.
The University asserts that it "made a good faith effort to produce the records [Mr. Tyler] requested;" but the University searched for an invitation list, not the attendee list that Mr. Tyler requested. The invitation list and the list of attendees is not necessarily the same. The University did not conduct a search for the attendee list, "using methods which [would] reasonably be expected to produce the record[] requested." 1 The University remains obligated to do so.
Because the University did not conduct a search for the record Mr. Tyler identified in his clarified request, it could not properly respond to that request. KRS 61.880(1) requires the University to:
determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and [to] notify in writing the person making the request, within the three (3) day period, of its decision. An 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.
As noted, the University treated Mr. Tyler's request as a request for the invitation list to the sponsored event. It conducted a search for the invitation list but did not conduct a search for the attendee list identified in his clarified request. After conducting a search for the attendee list, per the directive set forth above, the University must either produce the attendee list for Mr. Tyler's inspection and copying or cite the specific exception authorizing nondisclosure of the attendee list and provide a brief explanation of how the exception applies to the list. If its search for the attendee list yields no result, it should so advise Mr. Tyler. In order to confirm the adequacy of its search, the University may wish to describe the methods used in conducting its search.
Either party may appeal this decision 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.
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Distributed to:
Bruce M. TylerSheri Pawson
Footnotes
Footnotes
1 95-ORD-96.