Opinion
Opinion By: Jack Conway,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The question presented this appeal is whether the University of Louisville ("U of L") violated the Open Records Act in not providing documents which did not exist. We find that U of L did not violate the Open Records Act in not providing documents which did not exist.
Dr. Bruce M. Tyler submitted two open records requests to U of L. The first request was dated Aug. 8, 2013. The request stated:
I received the Federal and Breach of contract legal fees paid. The records are inadequate. I had asked for various things such as the following:
1. The names of the person and/or institution paid and date paid together attached to the invoice and where and how were these fees transmitted?
2. What was the sources of funding to pay these fees!
3. How much was paid to C. Cleveland Gambill, the Mediator
4. Is there any document that show [sic] any fees paid by U of L or its agents to Aubrey Williams?
The request also had a handwritten "5-2-14" next to the Aug. 8, 2013 date and a handwritten "remailed 5-17-15." The second request was dated May 1, 2014, and requested: "1. The History Dept. Faculty members in attached document. 2. The current pay scales for the History Dept., Pan African Studies, Political Science, Art Dept., Geography. Or give me the e-mail address to look them up as departments and not as individuals."
Dr. Tyler initiated this appeal on May 17, 2015. Dr. Tyler stated:
The U of L's Open Records officer Sherri Pawson never responded to these two year old requests and I asking [sic] you to compel her office to comply with my legitimate requests.
No. 1: The current pay scales of several U of L Depts, such as History, PAS, Art, Geography and Political science. She can also give me the net address to look them up as whole departments.
No. 2: These are a series of request [sic] on fees paid to mediator and attorney C. Cleveland Gambill and attorney Aubrey Williams. These records, normally, would reside in the U of L Counsel's Officer and require Pawson to make the request and send the records to me. 1
U of L responded to Dr. Tyler's appeal on May 28, 2015. U of L stated:
I have attached documentation that clearly demonstrates I responded to each of Dr. Tyler's open records requests and supplied all responsive records identified in the matters discussed.
In June of 2013, Dr. Tyler requested records detailing attorney payment logs. This request was logged in as 13-253. A short time later he sent a follow-up request, specifying Cleve Gambill records. This request logged in as 13-261. I sent a combined response and provided all documents identified. In my response I noted the payment to the mediator, Cleve Gambill, was paid by our insurance carrier KSBIT. . . .
In August of 2013, Dr. Tyler requested records detailing legal fees paid, specifying payments to Gambill and Aubrey Williams. This request was logged as 13-388. A short time later he sent the same request adding a penciled note asking for cancelled checks. I responded and provided all documents identified. . . .
In May of 2014, Dr. Tyler requested records of current pay scales. This request was logged in as 14-171. I responded and identified all responsive documents. . . .
Also in May of 2014, Dr. Tyler sent a copy of his August 2013 request adding a penciled note asking for "separate pay account for Gambill" and same for Williams. This request was logged in as 14-172. I responded explaining I had previously responded to these requests by providing all responsive documents identified in these matters. . . .
In February 2015, Dr. Tyler requested payments to Gambill. This request was logged in as 15-107. I responded explaining I had previously responded to this request by providing all responsive documents identified in this matter and noted the continued duplicative requests were disruptive. . . .
Dr. Tyler appears to have a belief that records exist beyond those identified and provided to him. That is not the case. All records identified in these matters have been provided. Regarding the payments for Gambill and Williams, Dr. Tyler seems determined that the University made payments directly to these individuals but that is incorrect. These matters were handled, through the settlement agreement, by our insurance carrier. I cannot provide records that don't exist. As to the "pay scales" I identified the responsive records.
U of L attached documentation supporting each of its responses.
A review of the documentation attached by U of L confirms its summaries of Dr. Tyler's open records requests and U of L's responses. "A public agency cannot afford a requester access to nonexistent records or those which it does not possess. The agency discharges its duty under the Open Records Act by affirmatively so stating." 14-ORD-147 (citations omitted). U of L provided documentation indicating that it responded to Dr. Tyler's requests and provided all responsive records. 2 We further note that many of Dr. Tyler's requests are requests for information and not requests for records. "Public agencies are not statutorily obligated under the Open Records Act to honor requests for information as opposed to requests for public records. " 14-ORD-188. Also, 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." "A public agency is not 'required to satisfy the identical request a second time in the absence of some justification for resubmitting the request.'" 05-ORD-150. Accordingly, U of L did not violate the Open Records Act in its responses to Dr. Tyler's requests for records.
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 Dr. Tyler further added, "here are quotes from former History Chair John McLeod saying that the University Counsel advised him not to comply with U of L rules until my lawsuits and complaints stop:
Locator: McLeod lawyers say can't help me.
1. History Department Chair John McLeod's letter to me, Bruce M. Tyler, dated April 28, 2006, concerning his being told by University lawyers not to help me.
McLeod's words or quote:
'Dear Bruce,
'Thank you for sending me your proposal on the Kentucky and Louisville Patriotic, Wartime Home Front and Community Pride Studies Program, which I read with great interest. I wish you the best of luck with it. Unfortunately, I have been advised that until your lawsuit has been settled, it would be best if I did not write you a letter of support.'
Source: History Chair John McLeod dated April 28, 2006 .
2. 'Hello from India! Thanks for the email. Unfortunately, I have been advised by the University's lawyers that from now on, you will have to make request [sic] for this kind of information to Dr. Bill Morison, UofL's Open Records Officer.'
Source: June 5, 2008, John McLeod, Chair ."
Dr. Tyler did not attach any documentation verifying these quotations, and did not specify which U of L rules that the University Counsel was advising Dr. McLeod to violate.
2 We note that some but not all of U of L's responses were within three business days of the receipt of the request. 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 raise this issue in his appeal, and accordingly we do not address it.