Opinion
Opinion By: Jack Conway,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Louisville violated the Open Records Act in the disposition of several requests from and on behalf of Dr. L. Andrew Cooper. For the reasons that follow, we find that the University's responses were partially in violation of the Act.
Dr. Cooper's appeal was received by this office on July 17, 2015, and the University's Senior Compliance Officer Sherri Pawson responded in writing on July 31, 2015. In addition to requests under his own name, Dr. Cooper includes within the scope of his appeal several requests by James Chakan, which, based upon the totality of the record, appear to have been made on Dr. Cooper's behalf. All of the requests were made by e-mail, which the University, by its conduct, evidently accepted as a method of delivery. We have aggregated some of the requests into groups for purposes of analysis.
The following requests or groups of requests are at issue in this appeal: 1
Request 1 . April 27, 2015: Dr. Cooper requested "copies of all emails ? from University of Louisville servers and files that mention me ? sent to or from accounts associated with [16 named people employed by the university] from Feb. 01, 2014 to as close to the present day as possible." (U of L reference number 15-213) 2
Request 2 . April 30, 2015: Dr. Cooper sent 15 requests which essentially duplicated the content of Request 1 as to 15 of the 16 named individuals. (U of L reference numbers 15-220 to 15-234) 3
Request 3 . May 11, 2015: Dr. Cooper requested copies of student evaluations from two Humanities courses. (U of L reference number 15-243)
Request 4 . May 11, 2015: Mr. Chakan requests "emails sent from the email accounts of Elaine Wise ? between February 1, 2014 and May 1, 2015 that mention Lawrence Andrew Cooper, Jr." This request differs from the corresponding portions of Requests 1 and 2 in that it is limited to e-mails sent "from" Ms. Wise's accounts. (U of L reference number 15-245)
Request 5 . May 14, 2015: Dr. Cooper requested "copies ? of documentation supporting claims in [a letter advising him of the non-renewal of his faculty appointment] regarding "Hostile communications," "Unsettling conduct," "Fear for safety," "'Aptly' perceived threats," and "Antagonistic communication with students." (U of L reference number 15-252)
Request 6 . May 14, 2015: Dr. Cooper requested "copies ? of all documentation related to the Humanities Program/Department's preparation for SACs certification produced since 2010." (U of L reference number 15-254)
Request 7 . June 5, 2015: Dr. Cooper submitted a narrowed and revised version of Request 1, asking for e-mails sent "FROM" 16 named individuals since February 1, 2014, that mentioned him "in the BODY of the text" (capitals in original). Six of the individuals were not the same as those mentioned in Request 1. (U of L reference number 15-319) 4
Request 8 . July 9, 2015: Mr. Chakan sent six requests for e-mails from certain individuals between February 1, 2014, and July 1, 2015, that mentioned Dr. Cooper in the body of the text. Only one of the six individuals, David James, was not among the people included in Request 1. (U of L reference numbers 15-330 to 15-335) 5
Request 9 . July 9, 2015: Mr. Chakan made 18 requests, all but two of which substantially duplicated portions of Requests 2, 4, and 7 (all requests were for e-mails "from" the referenced accounts and had an ending date of July 1 rather than May 1). 6 The other two requests duplicated Requests 3 and 6. (U of L reference numbers 15-337 to 15-354)
We shall first address the multiple requests for copies of e-mails.
With regard to Requests 1, 2, and 4 , Ms. Pawson argues that "[s]uch requests for 'any and all' records are not sufficient unless coupled with other detailed information that narrows the request." While it is true that KRS 61.872(3)(b) requires a request for copies by mail to have "precisely describe[d]" the records, we believe Requests 1 and 2 complied with that requirement. "A request must be specific enough so that a public agency can identify and locate the records in question." OAG 89-8. "A description is sufficiently precise for purposes of records access by mail if it describes the records in definite, specific, and unequivocal terms." 98-ORD-17 (internal quotation marks omitted).
Requests 1, 2, 4, 7, 8, and 9 all seek e-mails of specified individuals that mention Dr. Cooper over a period extending no more than one and a half years. Dr. Cooper has specified a type of records, a definite time period, search terms, and particular individuals in whose e-mail account those records should appear. This is a precise enough description to enable the University to identify and locate the records. Thus, we find the University's disposition of Requests 1, 2, and 4 to be in violation of the Open Records Act.
Concerning Requests 7 and 8 , Ms. Pawson states that the records requested are voluminous and she is in the process of gathering and reviewing the records. On Request 7 specifically, she states that "thus far I have identified over 1000 pages of records and I have not yet received responses from a few faculty. I will continue to review and gather records and provide a response as soon as possible." As to Request 8, she states: "I expect volume of records to be large and it will take some time to gather and review these records." This response was made on July 31, 2015. We have received no indication from either party that any records have been provided to Dr. Cooper since then.
Our past decisions have recognized that persons making broad requests for large volumes of e-mail or other records "cannot reasonably expect agencies ? to produce all responsive records within the three day deadline" imposed by KRS 61.880(1) , and "[a]pplicants are therefore urged to frame their requests as narrowly as possible and, if unable or unwilling to do so, to expect reasonable delays in records production." 12-ORD-228 (need to review 249,504 e-mails justified six-month delay in providing access). In 12-ORD-097, we found that an agency's need to review 22,117 records constituted "extreme circumstances" that justified a delay of six months in producing the records. We stated, however, that this constituted "the outermost limit of acceptable delay."
In this case, we have no indication that the volume of records in response to any of Dr. Cooper's requests will be nearly that high; the only figure we have been given is "over 1000 pages." For a request made on June 5 or July 9, 2015, to be still unfulfilled three or four months later requires more justification than this. While a reasonable delay might be acceptable upon a proper showing, we find the delays in this case to be unreasonable based on the minimal showing made by the University as to Requests 7 and 8.
The University has advised that Dr. Cooper has made approximately 45 requests since April 2015. We are informed by Dr. Cooper that at some point prior to August 25, 2015, the University provided him with approximately 1,500 pages of e-mails. The record does not indicate to which of his requests these documents were meant to be responsive, nor how complete that response was supposed to be. Dr. Cooper alleges that the response is still incomplete; however, we have received no updates from the University as to its compliance.
To the extent that Requests 7 and 8 are still unfulfilled, we find the disposition of these two requests to be untimely in violation of KRS 61.880(1). Moreover, the excessive delay has subverted the intent of the Open Records Act, short of a denial of inspection, within the meaning of KRS 61.880(4).
As for Request 9 , submitted by Mr. Chakan, Ms. Pawson has denied these six requests based on the claim that they are entirely duplicative of requests made by Dr. Cooper in his own name. Our review of the record indicates that some of the requests differ in that two additional months of e-mails are included in the scope of the request. On the whole, Request 9 was duplicative of Dr. Cooper's previous requests and our analysis pertaining to those duplicated requests is equally applicable here. An agency's failure to fulfill a request on grounds of duplication is excused only to the extent that the prior request is already disposed of. See, e.g. , 95-ORD-47; 04-ORD-018. Therefore, the failure to respond to Request 9 was a violation of the Act except to the extent it duplicated Requests 3 and 6, which were disposed of.
Turning to Request 3 , the student evaluations of two Humanities courses were for the most part withheld on the basis of KRS 61.878(1)(j) as "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended," and also on the basis of KRS 61.878(1)(a) as a "clearly unwarranted invasion of personal privacy." In 92-ORD-1375, we recognized an exemption from the Open Records on these grounds for evaluations of this type. In this case, the two courses in question were taught by other professors, but the evaluations contained a few references to Dr. Cooper; the University released those statements which pertained to him. Therefore, we find that University substantively complied with the Open Records Act as to Request 3. We do find, however, that the University procedurally failed to comply with the timeliness requirements of KRS 61.880(1), as the substantive response was made six business days after receipt of the request without proper justification.
With regard to Request 5 , the University asserts attorney-client privilege as to a "large packet of records." Ms. Pawson states that this packet "was prepared for counsel and the authors had the expectation the documents would remain privileged. "
Communications subject to the attorney-client privilege are exempt from disclosure under KRS 61.878(1)(l).
Hahn v. University of Louisville, 80 S.W.3d 771 (Ky.App. 2001) (discretionary review denied August 14, 2002). Under KRE 503(b), the attorney-client privilege encompasses any confidential communications between a lawyer and client or a representative of the client that are "made for the purpose of facilitating the rendition of professional legal services to the client."
We have reviewed the withheld records in camera pursuant to KRS 61.880(2). They include several written statements pertaining to Dr. Cooper which were apparently prepared between December 2014 and January; various e-mails to, from, or regarding Dr. Cooper; complaints made by Dr. Cooper; documents relating to Dr. Cooper's FMLA leave; Dr. Cooper's curriculum vitae, appointment documents, and evaluations; the University's Code of Conduct and Values Statement; and some sections from the University's Redbook and bylaws.
None of the records expressly represent communications between an attorney and a client; nor do any of them, on their face, show evidence of having been prepared by or for the University's legal counsel. Although a copy of a "Received" stamp (appearing on a page by itself) suggests that this collection of documents was delivered to counsel on a certain date, there does not appear, among the documents themselves, even so much as a cover letter which would constitute a clear case of an attorney-client communication.
Therefore, we must find that the University erred in asserting a blanket attorney-client privilege for this entire set of documents merely on the grounds that copies of them were sent to counsel. Some of the records clearly are not privileged, since they were transmitted to or from Dr. Cooper. As to certain others, while they might be privileged, the University has not sufficiently explained the circumstances which would have given rise to the privilege. The University must segregate the specific records subject to privilege, identify the nature of those records, and articulate how they constitute attorney-client communications or attorney work product.
As for Request 6 , we cannot conclusively state that the University withheld any records. Ms. Pawson states that there are no records of the Humanities Department's preparation for reaccreditation by SACS (Southern Association of Colleges and Schools). As she explains it, "[t]he process for SACS reaccreditation is a multifaceted process, operated from a committee structure to facilitate and respond to questions from the review. While every unit,, department, office, is theoretically included in the SACS report(s) individual units do not participate in all facets of the process."
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. As we have nothing in the record to indicate that records of preparation specifically by the Humanities Department must exist, we can find no substantive violation of the Open Records Act as to Request 6. We do find, however, that the University procedurally failed to comply with the timeliness requirements of KRS 61.880(1), as the substantive response was made eight business days after receipt of the request without proper justification.
Conclusion
In conclusion, we find that Requests 1, 2, and 4 were improperly denied since the records were precisely described. Requests 3 and 6 resulted in a procedural violation of the Open Records Act due to their untimely disposition. Request 5 was improperly denied on a blanket claim of attorney-client privilege. Requests 7 and 8 have resulted in excessive delay, subverting the intent of the Act short of a denial of inspection, to the extent that they are still unfulfilled. Request 9, though largely duplicative of other requests, was improperly disregarded except to the extent that the disposition of the prior requests was complete.
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 Requests identified as 15-238 and 15-259 were apparently fulfilled and do not appear to be in controversy. Request 15-256, mentioned by Ms. Pawson, was not included in this appeal.
2 The individuals named were James Ramsey, Shirley Willihnganz, Kimberly Kempf-Leonard, Deborah Keeling, Elaine Wise, Shelley Salamensky, Simona Bertacco, Tatjana Soldat-Jaffe, Annette Allen, Donna Ernst, Mary Miles, Alina Klimkina, Britney Broyles, Katherine Wagner, Megan McDonough, and James Watkins.
3 Alina Klimkina was not included in this set of requests.
4 The individuals listed in this request were Caroline Daniels, Bob Fox, Shelley Salamensky, Tatjana Soldat-Jaffe, Simona Bertacco, Pamela Beattie, Laura Ulmer, Angela Taylor, Elaine Wise, Kimberly Kempf-Leonard, Deborah Keeling, Tracy Eels, Shirley Willihnganz, James Ramsey, Donna Ernst, and Mary Miles.
5 The others named were James Watkins, Megan McDonough, Katherine Wagner, Britney Broyles, and Annette Allen.
6 The individuals named were Tracy Eels, Elaine Wise, Kimberly Kempf-Leonard, Deborah Keeling, Shirley Willihnganz, James Ramsey, Donna Ernst, Mary Miles, Shelley Salamensky, Tatjana Soldat-Jaffe, Simona Bertacco, Pamela Beattie, Laura Ulmer, Angela Taylor, Caroline Daniels, and Bob Fox.