Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Krystal Dolan initiated this appeal challenging the disposition by the Jefferson County Public Schools ("JCPS") of her February 18, 2016, request for "an opportunity to inspect or obtain copies of correspondence, " including but not limited to "[n]otes, emails, memos, and any form of other documentation regarding 'Krystal' or 'Krystal Dolan' or '[a]ll documentation of Krystal Dolan's Employee Discrimination Grievance' or 'Harassment Grievance(s) against O'Dell Henderson' or 'O'Dell Henderson's discriminatory practices' or '[a]ll documentation relating to the reassignment or transfer of Krystal Dolan.'" Ms. Dolan specifically asked for all such records to and from seven JCPS employees, namely, Superintendent Donna Hargens, Chief Business Officer Tom Hudson, Chief Operations Officer Michael Raisor, Labor Management and Employee Relations Manager Carla Jones, Labor Management and Employee Relations Director O'Dell Henderson, Compliance and Investigation Director Georgia Hampton, and Security Director Stan Mullin. "As a public agency employee," 1 Ms. Nolan observed, "I may inspect any record that relates to me, even if the record is otherwise exempt. " 2 On February 19, 2016, JCPS Deputy Communications Director Jennifer Brislin advised Ms. Dolan that JCPS was "in the process of gathering" responsive documents but would "need additional time to compile and review the records." JCPS anticipated the records would be available on Friday, March 18, 2016. A summary of the voluminous correspondence that followed appears below:
March 21 -- Ms. Dolan contacted JCPS for an update regarding the status of her February 18 request because the records were not provided on March 18. Ms. Brislin advised that a search had located "an usually large number of possible responsive documents, and we're in the process of reviewing each of them now to determine which ones are" responsive. Ms. Brislin indicated that she would check on the status when she returned later that morning. At 3:35 p.m. Ms. Dolan again requested an update. At 4:49 p.m. Ms. Brislin advised that she had just returned "from another event out of the office this afternoon." All of the e-mails had been printed and JCPS was "in the process of reviewing them to determine which ones are responsive. " Ms. Brislin advised that due to March 22 being a "Board meeting day," she might not have sufficient time in which to finish the review but she expected that all documents would be available "by COB on Thursday, March 24."
March 22 -- Ms. Dolan advised that receiving the records by COB on March 24 would be acceptable but confirming that she wished to "inspect all original documents." She asserted "there has been sufficient time for [JCPS] to find any documentation that is responsive" and the documentation "regarding correspondence about me and the decision[s] that were made that affected me" should be readily available for inspection. Ms. Dolan asked that JCPS either produce the records or deny the request by the COB on March 25.
March 23 -- Ms. Brislin advised Ms. Dolan that she was reviewing the records and would have "them available shortly." JCPS later advised Mr. Dolan that a search had located "81 pages, and they are now available" for inspection or copies will be made available for $ .10 per page.
March 24 -- Ms. Dolan reiterated that she wished to inspect " all original electronic correspondence " responsive to her February 18 request per KRS 61.872 as the response failed to indicate that "a reasonable search was made[.] (Original emphasis.) For example, Ms. Dolan was aware of a "second harassment/discrimination [sic] filed by Carla Jones" against Mr. Henderson and of handwritten notes by Ms. Hampton regarding her grievance in addition to "a certified packet from Compliance" that were not included; she asked JCPS to either produce all records or deny the request by March 25.
March 25 -- Ms. Brislin advised that JCPS was "in the process of gathering documents based on the clarification" provided but would need "additional time. " Ms. Brislin indicated that she would "make every attempt to expedite the search and review." At that time, she was "waiting on an estimate from our IT department of how long it will take to complete the search of the requested mailboxes[.]" Ms. Brislin advised that she would let Ms. Dolan know if other documents became available prior to completion of the search.
April 4 -- Ms. Brislin advised Ms. Dolan that she was attaching documents "in partial response" to her "clarified" request. Further, the IT department was "conducting a search of the requested mailboxes to determine if" additional responsive documents existed. Based on its estimate, JCPS anticipated being able to make any responsive documents available by April 15. Ms. Brislin quoted KRS 61.878(1)(i) and (j) without explanation. JCPS further clarified that JCPS was conducting a search "under the terms of your original request." JCPS asked Ms. Dolan to submit a new request if she was asking for additional records that would have been created after February 18. Ms. Dolan advised that JCPS had violated KRS 61.880(1) in failing to either provide all existing responsive documents or cite a statutory basis for denying access. Ms. Dolan asked that JCPS do so by COB on April 5.
April 11 -- After the COB, Ms. Brislin advised Ms. Dolan that a search of the specified e-mail accounts located "an additional 7 pages" responsive to her request and she was attaching said e-mails. JCPS quoted KRS 61.878(1)(a) without explanation. This disclosure completed its response to Ms. Dolan's "original and clarified open records request." 3 On April 22, Ms. Dolan supplemented her appeal with a copy of the April 11 e-mail. Ms. Dolan asserted that JCPS had not sufficiently justified its belated invocation of KRS 61.878(1)(a) or (1)(i) and (j) and reiterated that JCPS had violated KRS 61.878(3).
May 2 -- JCPS responded to Ms. Dolan's appeal. For the first time JCPS advised that the "initial search conducted by the IT Department" resulted in 1,049 e-mails (5,000 pages). "Based upon the extensive review and sheer volume of the documents," JCPS was unable to meet the March 18 deadline. JCPS explained "[w]ith regard to the investigation documents provided to Ms. Dolan previously," those documents would not have "turned up in the initial open records search because those documents were created after" the February 18 request. 4 With regard to "handwritten notes," JCPS "initially believed" they were preliminary and thus exempt. However, the notes "were in fact exempt from disclosure under the attorney-client privilege." JCPS advised that said notes "were sent as an attachment to confidential email communications" between Ms. Hampton and her attorney(s) for the purpose of facilitating the rendition of legal services to JCPS, and therefore fall within the parameters of KRE 503(b), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). JCPS further asserted that Ms. Dolan had no "reasonable ground to complain" regarding its purported compliance with KRS 61.872(5) given that JCPS responded within three days, explained the need "to compile and review the records" and this review included the need to determine the responsiveness of the more than 5,000 pages (1,049 e-mails) ultimately located in addition to reviewing the documents for necessary redactions. In attempting to justify its reliance on KRS 61.878(1)(j), JCPS again paraphrased the language of that exception, advising that "investigation materials regarding the complaint filed by Carla Jones" contain "preliminary opinions or recommendations that were not specifically incorporated into any final decision" until February 26, 2016. 5
The agency's response satisfied neither KRS 61.880(1) nor KRS 61.872(5). See 15-ORD-141 (In re: Nicholas Morris/JCPS). 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. " (Emphasis added.) A public agency cannot generally postpone this deadline. 01-ORD-140, p. 3. The February 19 response to Ms. Dolan's February 18 request was timely under KRS 61.880(1) but otherwise deficient as JCPS failed to either provide Ms. Dolan 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. JCPS failed, in the alternative, to properly invoke KRS 61.872(5), the statutorily recognized exception to KRS 61.880(1), by citing that provision and providing not only a specific date by which documents would be made available, but also a detailed explanation of the cause for delay in producing any existing responsive documents. See 12-ORD-151; 13-ORD-035.
"[T]he Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply." 01-ORD-140, pp. 3-4. Support for this position is found in KRS 61.872(5), which authorizes postponement of access to public records beyond three business days only "[i]f the public record is in active use, in storage or not otherwise available." Under those circumstances, "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. " KRS 61.872(5); 01-ORD-140. "[T]he Act 'normally requires the agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request.'" 01-ORD-140, p. 4, citing OAG-92-117. "Only if the parameters of a request are broad," this office reasoned, "and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a 'reasonable time for inspection turn on the particular facts presented.' . . ." Id.(citation omitted). 01-ORD-140, p. 4; 07-ORD-179; 14-ORD-026.
Even assuming the records being sought were "in active use, in storage or not otherwise available," JCPS did not identify which of these permissible reasons for delay applied, if any. See 12-ORD-211; 13-ORD-074. Rather, JCPS merely advised initially that it needed "additional time to compile and review the records." On appeal JCPS reiterated this argument, noting the volume of records. However, "[t]he need to redact records pursuant to KRS 61.878(4) is an ordinary part of fulfilling an open records request. It does not, in and of itself, constitute a reason for additional delay." 15-ORD-029, p. 3; 12-ORD-227; 14-ORD-047. That is particularly true in this case as KRS 61.878(3) overrides the other statutory exceptions relative to any records that "relate" to Ms. Dolan, 6 including those generated in the investigation of Ms. Jones' grievance prior to February 18 (except for those falling within the attorney-client privilege). 7 "Whether any delay beyond the statutory deadline was warranted turned on the adequacy of the [agency's] explanation." 14-ORD-226, p. 4; 02-ORD-217(agency response was not sufficiently detailed as it set forth "neither the volume of records involved nor explain[ed], in detail, the problems associated with retrieving the records implicated by the request"); 10-ORD-138 (the record on appeal was "devoid of any detailed explanation for why the retrieval and redaction should take so long," and thus deficient) ; 13-ORD-035.
JCPS specified a date by which existing responsive documents would be available -- March 18 -- yet failed to contact Ms. Dolan until after she requested a status update. See 07-ORD-047(agency was bound to comply with a self-imposed deadline absent proper accompanying explanation). As of March 21 JCPS was only beginning to review the documents in order to determine if any redactions were necessary; further delay until March 24 was proposed as March 22 was a "Board meeting day." 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 Act. 96-ORD-238, p. 3; 09-ORD-191 (deadline "cannot be extended to accommodate the schedules of agency staff"); 14-ORD-026; 15-ORD-174. The agency's March 25 response was also deficient in vaguely advising that "additional time" was needed. 01-ORD-38; 15-ORD-174.
This office agrees that applicants making requests for a significant volume of records can "not reasonably expect agencies . . . to produce all responsive records within the three day deadline. " 12-ORD-097, p. 6; 13-ORD-168. A reasonable extension of time may have been warranted in this instance; however, JCPS did not provide sufficiently detailed information regarding the number of duplicates (minimizing the burden proportionately), the specific difficulties associated with retrieval and redaction, if any, etc. , either initially or in responding to Ms. Dolan's appeal, for this office to rule in favor of JCPS on the question of whether the period from the February 18 request until March 23 (ultimately April 11), was justified. When viewed in light of 12-ORD-097 (delay of six months justified where 22,117 records were implicated) , and 12-ORD-228 (delay of six months justified where request identified ten individuals and used 69 search terms, resulting in 249,504 e-mails) , the "sheer volume" of records implicated here -- just over 1000 e-mails (or approximately 1400 including those subsequently located following additional delay), even assuming that JCPS did not interpret Ms. Dolan's request too narrowly, does not facially warrant such a delay nor did the responses of JCPS comply with KRS 61.872(5). The responses of JCPS also lacked the specificity required under KRS 61.880(1), pursuant to which a "response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " See KRS 61.880(2)(c); Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996)(KRS 61.880(1) "requires . . . particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance."); 04-ORD-106, p. 6; 13-ORD-051.
In first invoking KRS 61.878(1)(i) and (j) on April 4, and KRS 61.878(1)(a) on April 11, JCPS quoted the statutory language without identifying the specific records being withheld or explaining how any of the statutory exceptions applied. The courts and this office have applied the language of KRS 61.878(1)(i) and (j), commonly known as the "preliminary exceptions," in a variety of contexts. 8 Public records which are preliminary in nature forfeit their exempt status to the extent adopted by the agency as a basis for its final action. See 99-ORD-220; 07-ORD-156; 11-ORD-052. Thus, of the responsive documents that qualify as "preliminary recommendations, and preliminary memoranda" under KRS 61.878(1)(j), upon which JCPS ultimately relied, those which formed the basis of its final action, whether explicitly or implicitly, forfeited their preliminary characterization. 9 With regard to KRS 61.878(1)(a), this office refers the parties to pages 3-4 of 16-ORD-057, following Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992) and Zink v. Commonwealth, 902 S.W.2d 825, 829 (Ky. App. 1994). "With no detailed explanation of the privacy interest at issue, we must find that [the agency] has not met its burden of proof under KRS 61.880(2)(c) to sustain its invocation of KRS 61.878(1)(a)[.]" 16-ORD-057, p. 4. 10
Either party may appeal this decision by initiating action in the appropriate circuit court per 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 Ms. Dolan implicitly relied upon KRS 61.878(3), pursuant to which:
No exemption of this section shall be construed to deny, abridge, or impede the right of a public agency employee, . . . to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee . . . shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
This provision does not override KRS 61.878(1)(k) or (l), authorizing nondisclosure of records made confidential by federal and state law, respectively.
2 In subsequent correspondence, Ms. Dolan advised that JCPS "retaliated against both me and Carla Jones when they actively removed me as her clerk, after we both filed discrimination grievances." Accordingly, Ms. Dolan credibly maintained that records documenting the investigation of Ms. Jones' grievance also related to her within the meaning of KRS 61.878(3).
3 By letter dated May 9, 2016, JCPS replied to Ms. Dolan's May 4, 2016, assertion that of the seven pages, "were duplicates from their initial search," advising for the first time that its "additional search with expanded search terms" resulted in another 391 emails (1,000 pages) which JCPS had to review "for responsiveness and exemptions." The clarification provided on March 24 was unnecessary given that Ms. Dolan's original request specifically encompassed all documentation of her Employee Discrimination Grievance, "Harassment Grievance(s) against O'Dell Henderson" or his "discriminatory practices," or the "reassignment or transfer of Krystal Dolan." The March 24 e-mail merely reiterated these parameters.
4 If any responsive documents were not created until after February 18, those documents were certainly not originally implicated; however, if JCPS maintained this position simply because the "materials" were not "incorporated" into any final decision by JCPS until February 26, and the documents existed on February 18, the documents were implicated from the outset.
5 Nevertheless, any such documents in existence as of February 18, 2016, were indeed responsive to Ms. Dolan's request. Even if Ms. Dolan did not enjoy broader access per KRS 61.878(3), or assuming that some of these records do not relate to her, "[JCPS] is required to provide not only any preliminary documents that were expressly incorporated into the report, but any documents that formed the basis of the final agency action." 14-ORD-181, p. 9; 01-ORD-83; 15-ORD-067.
6 In 05-ORD-181, this office analyzed "relates" in this context as follows:
[T]he term "relates" found in KRS 61.878(3), . . . , is far more expansive in its scope than the term "contains a specific reference to" found in KRS 197.025(2) and restricting an inmate's right of access to public records in which his name appears. . . . The term "relate" is defined as having "connection, relation, or reference," . . . , and does not always require specific references in the form of a name.
Id., pp. 6-7. Further, KRS 61.878(3) a public agency employee is entitled to inspect and copy documentation that relates to administrative investigations which he or she initiated (as opposed to investigations of that employee). 07-ORD-150, p. 5, citing 95-ORD-97, p. 4.
7 Public records may be properly withheld under the attorney-client privilege in this context if all of the elements of the privilege are present. Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2001), See 97-ORD-127; 10-ORD-177. The privilege "does not apply to all communications between an attorney and a client. Indeed, to fall under the attorney-client privilege, a communication must be confidential, relate to the rendition of legal services, and not fall under certain exceptions." Cabinet for Health and Family Services v. Scorsone, 251 S.W.3d 328, 329 (Ky. 2008). Based on the agency's ultimate description, the notes appear to have been properly withheld as KRS 61.878(3) does not override the attorney-client privilege.
8 See City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658-660 (Ky. App. 1982);Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953 (Ky. App. 1983);University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992);University of Louisville v. Sharp, 416 S.W.3d 313, 315 (2013).
9 Further, KRS 61.878(3) overrides KRS 61.878(1)(j) as to any records that both "relate" to Ms. Dolan and existed on the date of the request.
10 KRS 61.878(3) overrides KRS 61.878(1)(a) as to records that "relate" to Ms. Dolan.