Opinion
Opinion By: Matt James, Assistant Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Louisville ("U of L") violated the Open Records Act in failing to provide routine correspondence that it stated did not exist. We find that U of L did not violate the Open Records Act in failing to maintain routine correspondence.
Dr. Tyler submitted an open records request by email to U of L on Mar. 18, 2015. Dr. Tyler stated:
Dr. John Ferre was the Arts & Sciences Dean when Dr. Ricky Jones wrote a letter in the LEO magazine declaring he and the U of L PAN African Studies Dept. would have continue [sic] Dr. Blaine Hudson's Saturday Academy Center n [sic] the West End. John Ferre received a lot of inquires about this because many people thought this meant that the University of Louisville was pulling out all of its programs in the West End. Dr. Ferre wrote a letter to LEO to say this was not true, only the Saturday Academy was being dropped. I think that Pres. Ramsey, Provost Shirley Willihnganz, Vice Provost David Howarth, John Ferre and others got calls, letters and emails on this fear that U of L was going to stop all of its programs in the West End. I have an attachment of the announcement by Ricky Jones and the reply by John Ferre as the source of this controversy. I want all of the emails, phone logs, and letters to the persons stated above and others who received these inquiries. The information should be in these persons [sic] files, which they are required to keep as public materials. Thanks.
U of L responded on Apr. 8, 2015. 1 U of L stated that "thus far I have not identified any responsive records, though I am still checking. I expect to have a final response for you early next week." U of L further stated that "there is nothing in our policies that require us to keep every record created at the University. . . . Very few of the categories of records are maintained permanently." U of L then provided a link to the state records retention schedules for universities. On Apr. 28, 2015, U of L sent another email to Dr. Tyler stating that "following up on my partial response to your request for 'calls, letters and emails on this fear that U of L was going to stop all of its programs in the West End,' I have not identified any responsive records."
Dr. Tyler initiated this appeal on Apr. 28, 2015. Dr. Tyler stated:
This is a request to have the University of Louisville to gather and send me the correspondence sent to then Arts and Sciences Dean John Ferre concerning Dr. Ricky Jones' declaration that the U of L Pan African Studies Dept. would not participate in the continuation of the Saturday Academy any longer. Mr. Pawson [sic] said she could not locate any records and this must have included telephone calls, logs, emails and letters sent to Ferre on this matter. I have enclosed three letters on the matter as proof that these items requested exist and I want them under the KY Open Records Law:
Finally . . . demand compliance immediately with any further delay and use your coercive powers.
In support of his appeal, Dr. Tyler attached three documents. The first was a text paragraph dated Apr. 28, 2015 addressed to Sherri Pawson "asking for these telephone logs, emails and copies of the letters on the subject of Dr. Ricky Jones backing out of working on the Saturday Academy." It was not clear from the document whether this paragraph was ever sent to Ms. Pawson. The second document was a column from LEO Weekly by Dr. Ricky L. Jones dated Apr. 16, 2014 entitled "Pan-African Studies ends the Saturday Academy," in which Mr. Jones explained that U of L was discontinuing the Saturday Academy due to the inability to work with the wife of the program's late founder. 2 The third document was a page from the Inbox section of the Apr. 30, 2014 edition of LEO Weekly which contained a letter from John P. Ferré, Interim Dean of the College of Arts and Sciences at U of L, titled "U of L Remains Committed to the West End." 3 The letter began by noting that Dr. Jones' Apr. 16 column "has led several people to call the university and question whether we are backing off our commitment to the West End," detailed the current projects of U of L dealing with the West End, and concluded by stating that "the Saturday Academy's future seems best served by our stepping away."
U of L responded to Dr. Tyler's appeal on May 8, 2015. U of L stated:
I reviewed documents that pertained to "The Saturday Academy" though none of the records were responsive to Dr. Tyler's request for documents regarding "this fear that U of L was going to stop all of its programs in the West End." No responsive records were identified. . . .
. . . .
I explained to Dr. Tyler in my April 8th email there is nothing in our policies that requires us to keep every record created/received at the university . . . .
In summary, the university cannot provide a record that does not exist.
U of L also attached an email indicating that the text paragraph attached to Dr. Tyler's appeal was actually emailed to Ms. Pawson on Apr. 28, 2015. U of L stated "well after hours on that same day, Dr. Tyler sent a repeat of his initial request. I received notice of the appeal before I could respond."
Dr. Tyler sent an undated supplemental correspondence, received by this office on June 1, 2015. Dr. Tyler stated:
I got a letter from U of L's Open Records officer, Sherri Pawson saying she is still looking for any letters, emails and phone logs concerning Dr. Ricky Jones' decision to not participate in Dean J. Blaine Hudson's Saturday Academy. I think this is a stall and non-compliance because the record shows in a document enclosed that the U of L will only divulge information unless it is sued in court . . . .
Here is the known record. I had included the letters of Dr. R. Jones and Ferre in LEO. Ferre and Jones may have got letters, emails and calls and I want records from both sources. Ferre, as Dean at the time, was required to keep official business records and this was official business because the Hudson's Saturday Academy was an officially supported unit of the Arts & Sciences College. Pawson's argument is simply not plausible. . . . Pawson is too afraid to request records from Ricky Jones.
Dr. Tyler then quoted an email from Dr. Jones to Dr. Tyler, with a carbon copy to Sherri Pawson, dated Wed., June 11, 2014, 4 and attached the Apr. 8, 2015 email from U of L which was its initial response to his request.
"A public agency cannot afford a requester access to a record that it does not have or which does not exist." 14-ORD-027. "A complainant may overcome an agency's denial that records exist, but 'must make a prima facie showing that such records do exist.'" 14-ORD-097;
Bowling v. Lexington-Fayette Urban Cnty. Gov't, 172 S.W.3d 333, 341 (Ky. 2005). "The existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence." 11-ORD-074. Dr. Tyler does not cite to any statute, regulation, or case law requiring the creation and maintenance of the correspondence he seeks, instead inferring from two articles that such correspondence must exist. The only reference to any correspondence of the type Dr. Tyler seeks in either article is in Dr. Ferré's letter to the editor, which references several calls questioning U of L's commitment to the West End. Dr. Tyler cites to no authority requiring that such phone calls be logged or otherwise recorded, stating only that "this must have included telephone calls, logs, emails, and letters sent to Ferre on this matter." "We assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his[/her] request, and from the official custodian in providing the records which satisfy the request." 12-ORD-065. Since Dr. Tyler "has produced no affirmative evidence, beyond mere assertions, that the agency possesses such records as he has requested, we do not have a sufficient basis on which to dispute the agency's representation that no such records exist." 09-ORD-214.
Although U of L should have expressly stated so, the correspondences Dr. Tyler requests appear to be routine or general correspondences. The State University Model Records Retention Schedule classifies routine correspondences under Series U0101 Correspondence-General. "This series documents the general operations of each department within the university. This correspondence is not considered crucial to the preservation of the administrative history of each department. . . . Retain no longer than two years." 5 "Discretion rests with the agency and user to determine whether general correspondence need be retained. No requirement exists for the permanent archiving of these records." 09-ORD-044. U of L is therefore not required to create or maintain the kind of correspondences requested by Dr. Tyler. Accordingly, U of L did not violate the Open Records Act in denying Dr. Tyler's request for correspondences relating to whether U of L was going to stop all of its programs in the West End on the grounds that it did not have any such correspondences. 6
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.
Footnotes
Footnotes
1 KRS 61.880(1) provides that "each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days . . . after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision." However, Dr. Tyler does not directly raise the issue of the timeliness of U of L's response, and therefore we do not address it.
2 Ricky L. Jones, Pan-African Studies ends the Saturday Academy , LEO WEEKLY, Apr. 16, 2014, http://www.leoweekly.com/2014/04/pan-african-studies-ends-the-saturday-….
3 John P. Ferre, Letter to the Editor, U of L Remains Committed to the West End , LEO WEEKLY, Apr. 30, 2014, http://www.leoweekly.com/2014/04/inbox-april-30-2014/.
4 The email stated, "I've informed Sherri Pawson that I'm not responding to any more of your stupid requests concerning my faculty. This has been going on for years and I'm absolutely sick of it. Get your info from someone else in the College. Go pick on someone else. Get a life, man!" This email was also attached to U of L's response, and appeared to have been cut and pasted into a document rather than being the original email.
KRS 61.872(6) provides that "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." The fact that Dr. Tyler has submitted multiple requests is not by itself sufficient to establish an open records violation. "Repeated requests to inspect records of a public agency alone do not . . . amount to harassment." 10-ORD-003. Although Dr. Jones' email, if authentic, is troubling, it is not sufficient to demonstrate that U of L has not made an adequate search for records in this particular instance. We caution U of L that it has a duty under the law to respond to open records requests unless it can demonstrate by clear and convincing evidence that the requests are intended to disrupt essential functions of the public agency.
5 KY. DEPT. FOR LIBRARIES AND ARCHIVES, STATE UNIV. MODEL - RECORDS RETENTION SCHEDULE 1 (Apr. 16, 2015).
6 Dr. Tyler requests that we "demand compliance immediately with any further delay and use your coercive powers." He adds in a postscript, "what is the extent of your power to compel compliance? The C-J newspaper spend [sic] tons of cash and time in court with lawyers to get compliance. Is that how the law works and your role?" The Attorney General does not have any enforcement powers in the open records context; enforcement of the Attorney General's open records decisions must be sought in circuit court. KRS 61.880(5)(b) provides that "if an appeal is not filed within the thirty (30) day time limit, the Attorney General's decision shall have the force and effect of law and shall be enforceable in the Circuit Court of the county where the public agency has its principal place of business or the Circuit Court of the county where the public record is maintained." "The Attorney General is empowered to review a public agency's denial of a request to inspect a public record, at the request of a complaining party, and to issue a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884. . . . This is the extent of his authority. The Attorney General is not empowered to . . . enforce his decision by the imposition of penalties. . . . His role is narrowly circumscribed by statute. . . . If a public agency continues to withhold records after thirty days have elapsed, and the agency has not appealed the Attorney General's decision, the requester must seek enforcement of the decision in the appropriate circuit court." 95-ORD-19. Although we do not find a violation by U of L here, if we did find a violation and the decision was not appealed within thirty days, any relief would have to be requested in circuit court.