Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
Bruce Tyler appeals the University of Louisville's disposition of his June 25, 2013, request for Joseph McMillan's "updated C[urriculum] V[ita]." Although the record on appeal is not entirely clear, our review of the documentation Mr. Tyler attached to his appeal letter confirms the following:
. in September 2012 the University responded to Mr. Tyler's "question regarding Mr. McMillan's CV," which it had released to him in response to an earlier open records; 1
. on June 25, 2013, Mr. Tyler requested Mr. McMillan's "updated CV," characterizing the CV previously released to him as "a short CV" that did not include his service activities and publications; 2
. on June 28, 2013, the University notified Mr. Tyler that "the document provided to [him] in response to [his] 2012 request was the only document located"; 3
. on May 26, 2015, Mr. Tyler received an email from Becki Newton, a University employee in the Office of the Dean, College of Education & Human Development, in which she advised that "Mr. McMillan's CV was apparently removed from his file [when] he passed away in order to write a story about his life" and indicated that she was "still trying to find a copy of it . . . ."; 4
. on May 27, 2015, Mr. Tyler responded that the disappearance of the CV "does not sound good" and, on May 28, asked that Ms. Newton "stay on the trail to find this document" since "if someone wanted a copy of Mr. McMillan's CV, they would copy it and leave it in the records in the archives" rather than "remove it completely."
On May 28, Mr. Tyler sent a letter to the Office of the Attorney General containing the reference line: "McMillan's CV and records to demand copy KY Attorney General 5 28 2015."
In his May 28 letter to this office, Mr. Tyler asserted that the three page CV with which the University provided him:
was not the true CV and it lacked Mr. Joseph McMillan's Annual Merit Review records of what he did each year to show his work record and what he did in order to receive any salary increase. [Sic.] Every faculty member at the University of Louisville has to keep this record and turn it in each year. This record is completely absent in the case of Mr. McMillan.
Mr. Tyler explained that Mr. McMillan retired in 2010, and the CV he received from the University "stopped at 1990." He maintained that "this is a deliberate effort . . . to hide records as a form of noncompliance" and suggested that the Attorney General "send a direct order to Ramsey and the Dean's office to produce Mr. McMillan's CV." 5
On June 9, 2015, the University responded to Mr. Tyler's letter to the Office of the Attorney General. On behalf of the University, Senior Compliance Officer Sherri Pawson explained:
In July of 2012 Mr. Tyler mailed an open records request asking for retired professor Joseph McMillan's CV. I identified the most recent version of Mr. McMillan's CV and provided a copy to Mr. Tyler. See documents attached # 1.
Mr. Tyler asked again for the same document later in 2012 and again in 2013. I responded each time that he had received the most recent version identified. See documents attachment # 2.
I have correspondence in my files detailing my searches for the most current CV including the various offices contacted and the responses. Mr. Tyler claims the document was purposefully removed but I am confident a review of the activities associated with this open records request would show that my colleagues throughout the university performed their due diligence to identify and provide the document. All involved in this matter believe the version sent to Mr. Tyler was the final CV submitted by Mr. McMillan. I can provide copies of all.
Mr. Tyler states that all faculty within the University are required to submit an updated CV as part of the annual review process per UofL's governance document "The Redbook." That is incorrect. In Mr. Tyler's college, Arts & Sciences, that is the requirement. A&S faculty are required to submit a current CV as part of their annual review documentation. Mr. McMillan taught in the College of Education & Human Development. CEHD's annual review process does not call for faculty to submit CVs. I can understand how Mr. Tyler might have been mistaken at this point.
See requirements:
Redbook Sec. 4.2.1 Annual Reviews
http://louisville.edu/provost/redbook/contents.html/chap4.html#43251
A&S Annual Review Guidelines
http://Louisville.edu/artsandsciences/faculty-staff/deans-guidelines/De…
OEHD Personnel Polices Sec. 3.2 Annual Reviews
http://louisville.edu/provost/faculty-personnel/unitCEHD__Personnel.pdf
The Office of Faculty Personnel maintains the official promotion/tenure files for all University faculty. Faculty Personnel sent me the most recent version they had on file which I provided to Mr. Tyler.
In summary, the University has not identified any additional records beyond Mr. McMillan's CV released in 2012.
Having considered Mr. Tyler's arguments and the University's response, and focusing on the only open records dispute Mr. Tyler properly presents under KRS 61.880(2) by attaching both his written request and the University's written response, we affirm the University's response to his June 25, 2013, request for Mr. McMillan's "updated CV."
The University properly responded to Mr. Tyler's June 25, 2013, request that "the document provided to [Mr. Tyler] in response to [his] 2012 request was the only document located." Ms. Pawson explained that because Mr. McMillan was employed in the College of Education of Human Development, his annual review process did not require submission of a current CV. She contrasted this with the College of Arts and Sciences in which Mr. Tyler is employed. The College of Arts and Sciences requires submission of an updated CV on an annual basis. He provides web links to University policies to verify these facts. This plausible explanation for the nonexistence of an "updated CV," and the University's inability to produce one, obviates the necessity of a description of the search undertaken to locate an "updated CV" in 2013. Compare, 12-ORD-192 (recognizing agency's duty to explain its inability to produce records that are presumed to exist). Ms. Pawson indicated that correspondence documenting her search confirms that she and her "colleagues throughout the University performed their due diligence to identify and provide the document" and that "[a]ll involved in this matter believe the version sent to Mr. Tyler was the final CV submitted by Mr. McMillan." She offered to provide copies of this correspondence to the Office of the Attorney General.
In a line of decisions dating from 1995 to the present, the Attorney General has recognized that an agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47; 08-ORD-194; 15-ORD-023. We reasoned:
Common sense dictates that repeated requests for the same records may become unreasonably burdensome or disrupt the agency's essential functions. Thus, at page 6 of OAG 92-91 this office observed:
95-ORD-47, p. 4. Justification for a second request for the same record may include loss or destruction of the record previously disclosed, but may not include an unsubstantiated suspicion that the previously disclosed record is not the record actually requested or that the record is being improperly concealed. In the later case, the requester's recourse lies in an appeal to this office and/or, in the latter case, to the courts. The requester's recourse does not lie in filing multiple successive requests for the same record.
The University of Louisville properly responded to Mr. Tyler's June 2013 request for Mr. McMillan's "updated CV" by referring him to the document produced in response to his 2012 request for Mr. McMillan's CV. Unless Mr. Tyler "can explain the necessity of reproducing the same record [that has already been released to him] such as loss or destruction of the record[], we see no reason why the [University] must satisfy the same request a second time. " 95-ORD-47, p. 4.
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.
Footnotes
Footnotes
1 Mr. Tyler did not attach a copy of the 2012 request that resulted in the release of Mr. McMillan's CV, described in the University's September 2012 response as "the most recent version of his CV taken from his official faculty file."
2 Mr. Tyler attached a copy of his June 25, 2013, request to the University.
3 Mr. Tyler attached a copy of the University's June 28, 2013, response.
4 Mr. Tyler attached a copy of Ms. Newton's May 26 email but did not attach a copy of the document that prompted her email.
5 Mr. Tyler stated that he enclosed his "request letters dating back to 2013." As noted, our review of the attachments confirms the presence of only one request, namely, his June 25, 2013, request for Mr. McMillan's "updated CV." Related correspondence sent or received in the period after an open records request is submitted is not the equivalent of the request itself under KRS 61.880(2)(a).