Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Melinda Gamble Lovern initiated this appeal challenging the disposition of her December 29, 2014, and July 9, 2015, requests by the University of Kentucky (UK). In her undated letter of appeal, received in this office by fax on August 3, 2015, Ms. Lovern asserted that documentation attached thereto, consisting of e-mail threads between the parties, 1 demonstrated that UK had subverted the intent of the Open Records Act "by failing to provide me with timely access to the records requested[.]" Ms. Lovern did not allege that UK committed any substantive violation of the Act in responding to either of the requests, but observed that she had not received a final response to her July 9 request as of that date (August 3) nor had she received the documents responsive to her December 29, 2014, request until February 6, 2015. 2 The record on appeal substantiates her claim that UK violated the Act from a procedural standpoint in failing to either comply with KRS 61.880(1) or properly invoke KRS 61.872(5) on both occasions, and subverted the intent of the Act, short of denial and within the meaning of KRS 61.880(4), in failing to provide her with timely access to responsive documents ultimately released in response to both requests, though a reasonable delay was justified given the voluminous nature of the requests and the necessity of redacting information protected under the Family Educational Rights and Privacy Act (FERPA).
By e-mail directed to Senior Paralegal Amy Renee Spagnuolo on December 29, 2014, Ms. Lovern requested that UK provide: 3
1) Decision letters issued by any [UK] Student Conduct Hearing Panels between January 1, 2011 and December 21, 2014.
2) Decision letters issued by the [UK] Appeals Board (UAB) between January 1, 2011 and December 21, 2014.
3) A copy of any . . . training materials the [UK] Office of Student Conduct, Dean of Students['] Office, VIP or others used in 2014.
4) A copy of any . . . training materials the [UK] Office of Student Conduct, Dean of Students' Office, VIP or others provided [UK] athletic coaching staff in 2014.
5) Any . . . training materials the [UK] Office of Student Conduct, Dean of Students['] Office, VIP or others provided [UK] students in 2014.
Ms. Lovern also requested ten (10) broad categories of records from the period of August 22, 2014, through December 21, 2014, identified as (6)(a)-(j) - for example, "any documentation in the possession of [UK] which outlines or in any way documents the process used for an appeal of a student conduct code violation" and "any correspondence between any member of the Student Affairs Office (including but not limited to the Dean of Students' Office, Community of Concern and Office of Student Conduct) and the men's and women's swim team coaches." The request also specifically included "any and all responsive correspondence and communication between and among [UK] . . . Department and its liaisons, including but not limited to" a number of specified parties (identities redacted) with regard to items (e)-(j).
Having received no response, Ms. Lovern contacted UK by e-mail on January 6, 2015, inquiring as to whether the request was received. UK confirmed receipt of the request. On January 7, Ms. Lovern asked why a response had not been sent. UK advised her by e-mail dated January 8, 2015, that UK was "officially closed" from December 25, 2014, until January 5, 2015, and therefore a response was not due until that date. 4 UK further advised that the "Records Office is in the process of gathering all potential documents responsive to your request. Your request requires multiple searches to be conducted of various mailboxes and thus additional time and effort is needed to respond to this request." The Records Office anticipated receiving the records "by the end of next week." UK advised that the Records Office would "then need time to review the documents and respond accordingly." It "anticipate[d] sending an "official response" during the week of January 26, 2015. However, by e-mail dated February 2, 2015, Ms. Lovern had to request an update regarding the status of her December 29, 2014, request. On February 6, 2015, UK notified her by e-mail that documents responsive to her December 29 request were attached with the exception of the requested training materials that were put on a CD and mailed to Ms. Lovern that day.
On July 9, 2015, Ms. Lovern submitted a request by e-mail for eight broad categories of records without date restrictions, except for one seeking "[a]ny and all correspondence and communication created since" her December 29, 2014, request pertaining to "[redacted material to] include correspondence and communication from or to all [UK] administration, staff, and Board of Trustees including but not limited to all [redacted material]." Ms. Lovern asked for "[a]ny and all documentation" regarding a number of subjects, "including but not limited to" items omitted from our copy of the request, but which presumably entailed a list of individuals and/or proceedings. On July 15, 2015, UK confirmed receipt of Ms. Lovern's request. UK again explained that its Records Office was "in the process of gathering all potential documents responsive to your request. . . . As you are aware, your request requires multiple searches to be conducted of various mailboxes and thus additional time and effort is needed to respond to this request." The Records Office further indicated, as before, that it "anticipate[d]" receiving the documents by the end of the week but would "then need time to review all documentation and respond accordingly." UK "hope[d] to have a response" to Ms. Lovern by "the end of next week."
However, as of July 24, 2015, UK notified Ms. Lovern that it "continue[d] to review the documents potentially responsive to your recent request" and "should have all documents reviewed and a response to you no later than COB on Wednesday, August 5, 2015." By e-mail dated July 27, 2015, Ms. Lovern expressed her disappointment to UK concerning the request for "yet another extension" and requested to receive "immediately all those documents that you have" in addition to "an explanation as to which they are and why, specifically, they are delayed." Deputy General Counsel T. Lynn Williamson responded on behalf of UK by e-mail that same day. He advised that Ms. Lovern had requested "documents for a period of approximately six months." The documents "may be records protected under [FERPA]. To ensure the privacy of UK students, after Ms. Spagnuolo's review," Mr. Williamson explained, "I will carefully review all documents before release. I am out of the office on University business the rest of this week and through next Monday." Mr. Williamson indicated to Ms. Lovern that UK's response "and all of the documents pursuant to the request will be sent to you next week, and our projected date is by the close of business on Wednesday, August 5." Due to the volume of records, UK further advised that a CD would be mailed on that date.
However, Ms. Lovern actually picked up the documents requested when they were available on August 17, 2015. UK confirmed as much in responding to Ms. Lovern's appeal. "While appropriate redactions have been made to the requested documents," Mr. Williamson advised, UK has not denied any requests made by Mr. Lovern. Given the nature of the request "('Any and all documentation. ...'), the period of time over which records were requested (six months), the volume of records to be searched and then reviewed ('correspondence and communication between and among [UK] administration and staff members....'), and the necessary careful redactions ([FERPA], personal privacy [KRS 61.878(1)(a)], and attorney-client privileged issues [KRE 503])," UK did not respond "in the usual, standard three-day time frame."
Even assuming that UK issued a timely written response to both requests, both of those initial responses were otherwise deficient insofar as the agency failed to either provide Ms. Lovern with access to all existing responsive documents within that period of time or cite the applicable statutory exception(s) and explain how it applied to any records being withheld in writing per KRS 61.880(1). UK failed, in the alternative, to expressly invoke KRS 61.872(5), 5 the statutorily recognized exception to KRS 61.880(1), and provide a detailed explanation of the cause for delay in producing any existing responsive documents and the specific date when the documents would be available. See 12-ORD-151; 13-ORD-035. Absent from the initial and supplemental responses by UK is any reference to KRS 61.872(5); also lacking is the statutorily required explanation of the cause for delay. If any of the records being sought were "in active use, in storage or not otherwise available," UK failed to specify which of these permissible reasons for delay applied or to what extent.
Public agencies, including UK, are required to comply with the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . 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." Public agencies cannot generally postpone this deadline. 04-ORD-144, p. 6; 01-ORD-140, p. 4; 06-ORD-147; 10-ORD-201; 11-ORD-035.
UK violated the Act in failing to issue a timely written response and provide access to any existing responsive documents not protected from disclosure, as it did not expressly invoke KRS 61.872(5) or satisfy the requirements of that exception. See 13-ORD-052. Vague reasons for the delay and estimates of how long it will be, such as those provided in UK's initial and subsequent responses to both requests, have been deemed insufficient for purposes of complying with KRS 61.872(5), requiring a "detailed explanation" and the "place, time, and earliest date" when records will be available for inspection. 01-ORD-38 ("KRS 61.872(5) envisions designation of the place, time, and earliest date certain , not a projected or speculative date, when the records will be available. . ."); 07-ORD-158 (response that agency was "in the process of filling" the request and expected to fill it "within the next two weeks" did not suffice). 08-ORD-006 (agency's response advising that it would be "a couple of weeks" before it could "get the copies together" without further explanation violated KRS 61.872(5)).
UK responded to Ms. Lovern's July 9, 2015, request within three business days of receipt per KRS 61.880(1); however, even assuming that UK also responded in a timely manner to Ms. Lovern's December 29, 2014, request within three days, excluding weekends and legal holidays, Ms. Lovern did not ultimately receive documents responsive to her December 29, 2014, request until February 6, 2015, rather than January 26, 2015, and she did not receive documents responsive to her July 9, 2015, until August 17, 2015, rather than August 5, 2015. In both instances, UK postponed the date specified more than once based on the nearly identical generic responses initially provided, until Mr. Williamson's July 27, 2015, response to Ms. Lovern's inquiry regarding the additional delay relative to her July 9, 2015, request, in which UK indicated that FERPA "may" protect some records from disclosure and otherwise relied upon counsel's absence. UK is required to have a mechanism in place to ensure the timely receipt and efficient processing of requests made under the Act. Notwithstanding any challenges impeding the ability of UK to comply, a "public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act. " 02-ORD-165, p. 3 ("If the records custodian goes on vacation, or is unable to attend to his duties because of illness, or an accident, the agency is obligated to designate another person to review and handle open records requests in the absence of the regular custodian of the records"); 09-ORD-091 (statutory period for a response "cannot be extended to accommodate the schedules of agency staff" ); 14-ORD-026.
While a reasonable extension of time was justified on the facts presented, given the volume of potentially responsive documents and the obligatory (rather than permissive) redactions under FERPA, 6 the record lacks adequate detail for this office to determine whether the length of the delay was justified in either instance, and it was incumbent on UK, as it is on any public agency, "to make proper provision for the uninterrupted processing of open records requests." 01-ORD-140, p. 6. A public agency response advising that it cannot immediately comply with a request "because of the press of business [is] insufficient to meet the requirements of" the Open Records Act. 96-ORD-238, p. 2. The duty to respond to a request, "and to afford the requester timely access to the records identified in this request, is as much a public servant's legal duty as any other essential function." 01-ORD-21, p. 4. To clarify, this office sees "nothing wrong with [UK's apparent] policy of processing open records requests through its legal department. . . . This policy ensures uniformity and adherence to the law. . . . However, care must be taken that such a policy does not interfere with the timely processing of an open records request." 00-ORD-166, p. 4; 10-ORD-151 (absence of UK's general counsel did not toll the agency's time for a response and "provision should be made for the timely processing of requests or appeals even in her absence"); 11-ORD-029 (unavailability of attorney to "'review the final record release'" was "legally unsupportable"); 12-ORD-128.
Neither the initial nor the supplemental responses by UK contained the specificity envisioned by KRS 61.872(5) upon which it was implicitly relying in delaying access beyond the statutory period for a response under KRS 61.880(1); accordingly, UK violated the Act from a procedural standpoint. Inasmuch as UK initially failed to provide a legitimate detailed explanation of the cause for delaying access beyond the date specified on both occasions, the Attorney General must conclude that Ms. Lovern did not receive "timely access" to responsive documents eventually provided, which subverted the intent of the Act within the meaning of KRS 61.880(4).
Either party may appeal this decision by initiating action in the appropriate circuit court under 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 Although e-mail is not a recognized means of submitting a request under KRS 61.872(2), authorizing hand-delivery, mail, or fax transmission, a public agency can waive this requirement, either expressly or by a course of conduct, by responding without objection as UK did in this case. 07-ORD-064; 08-ORD-144.
2 Ms. Lovern also referenced a request made on December 9, 2014, but did not include a copy with correspondence attached to her appeal; this office is therefore precluded from addressing issues related to any such request.
3 Ms. Lovern acknowledged with regard to items 1 and 2 that UK was permitted to redact "any personal identifiers and information protected by FERPA." She also redacted any such information contained in the hard copies of the requests provided for this office to review under KRS 61.880(2)(a). Those omissions are signified with ellipses.
4 Whether being closed for break tolls the agency's time for a response is unclear as KRS 61.880(1) excludes only "Saturdays, Sundays, and legal holidays." See 01-ORD-94 ("spring vacation" for a primary school did not qualify as "legal holiday"); 09-ORD-191 (absence of records custodian and legal counsel for the agency due to fall break did not justify a delay beyond three business days). A conclusive determination is unnecessary here given that UK delayed access well beyond three days past when it was actually received on January 6 without properly invoking KRS 61.872(5).
5 KRS 61.872(5) states:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
6 See 15-ORD-029 (need to redact information contained in records per KRS 61.878(4) is an "ordinary part of fulfilling an open records request" and it "does not, in and of itself, constitute a reason for additional delay"); 14-ORD-047. "[T]he decision to [separate protected information] rests within the sound discretion of the public agency because the exemptions contained within KRS 61.878(1) are permissive, not mandatory." 97-ORD-6, p. 4, quoting OAG 89-76. However, this cannot be said of separate and more specific mandatory provisions, including FERPA.