Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
William A. Teague initiated this appeal by letter dated November 11, 2016, challenging the actions of the University of Kentucky (College of Law) ("UK") relative to his October 17, 2016, request for the following:
[r]ecords from any Dean of the College of Law or any of the Admissions staff at the College of Law, specifically emails, but also other records (e.g. memorand[a], acceptance list, timing of acceptance, the formula for acceptance, any list of criteria for admitting a student, and other similar records), from Aug. 1, 2015 until present involving the overly large 1L (first year) law student class.
Mr. Teague noted that "[t]he class has 180 members, so I am looking for records that explain why there was such a large influx of students for the present academic year." By e-mail 1 dated October 20, 2016, Director of Open Records Amy Renee Spagnuolo advised Mr. Teague that "the University's Open Records Office is working with the College of Law to gather all potentially responsive documents. Unfortunately, the College's IT department continues to [experience] technical problems. Our servers were completely down yesterday. I anticipate receiving an update from IT tomorrow or at the very latest Monday." Ms. Spagnuolo further advised that "[a]s soon as they can provide me with more information as to when I can anticipate receiving the documents, I will be in touch with you." She noted that "any student records, including email communications, are protected by [the Family Educational Rights and Privacy Act] FERPA." 2
By e-mail dated October 24, 2016, UK provided Mr. Teague with an update as follows:
The College has advised that they have several more searches to conduct throughout the week. Once our office receives all the documents we will be able to provide you with a better date within which to expect a formal response from our office. We will need to review all documents and determine what is responsive specifically to your request (excluding any exemptions pursuant to the Kentucky Open Records Act) and prepare a formal response to you. I will provide an update the first of next week. . . .
One week later, by e-mail dated October 31, 2016, Ms. Spagnuolo notified Mr. Teague that the "[C]ollege has advised they will finish up with their searches by Thursday of this week and have the documents to our office. We will then need to go through everything. I'll have a better idea of how long this will take by this time next week, once I see the documents."
Having received no further updates, by e-mail dated November 10, 2016, Mr. Teague advised Ms. Spagnuolo that 10 days had elapsed since her last correspondence and that a total of 24 days had elapsed from the date of his initial request. 3 Mr. Teague noted that UK had yet to provide him with any responsive documents or alternatively, provide "sufficient reasoning for the delay, as continued searching and reviewing" is not a valid reason, "especially without stating the available date" when he could obtain the records. Citing KRS 61.872(5), and several prior decisions by this office construing that provision, he requested an update. On the next day, November 11, Ms. Spagnuolo advised that she did not receive the potentially responsive documents from the College of Law until November 1. For the first time, UK estimated that approximately 3,000 e-mails were implicated. Ms. Spagnuolo then observed that UK receives daily requests and responds to "850-950 requests annually. Many are requests similar to yours, where they require hours of document review and redaction. Because of this, we handle one project at a time." UK anticipated being able to review the e-mails from the College of Law "starting next week and providing" Mr. Teague with a "formal response" in the "following weeks." The instant appeal followed.
Upon receiving notification of Mr. Teague's appeal from this office, General Counsel William E. Thro responded on behalf of UK by letter dated November 21, 2016. "Consistent with standard university practice," Mr. Thro advised, the Open Records Director asked the College of Law "to assemble any documents that might be responsive to Mr. Teague's request and forward them to the Office of Legal Counsel for review." Mr. Thro reiterated that the College of Law provided "between 3,000 and 4,000 e-mail communications that might be responsive to Mr. Teague's extraordinarily broad request." UK further cited the need for its Office of Legal Services to determine whether any of the responsive documents "are protected by the federal constitutional right to privacy, federal privacy laws [FERPA], or state privacy laws [KRS 61.878(1)(a)]," determine whether such redactions "can protect the privacy rights of the students," "actually do the redactions" where possible, determine if any other exceptions apply with regard to documents that are "not protected by constitutional and statutory privacy rights," and, to the extent it declines to produce a responsive document, "craft a written response that explains in sufficient detail why the documents are being withheld." In sum, UK must discharge its duties under KRS 61.878(4) and 61.880(1). 4
Observing that the above process "is a time consuming and labor intensive process," and it must be "particularly careful" not to disclose any documents that would violate a student's privacy rights, UK advised that it will "complete its review as soon as it can do so and will then respond to Mr. Teague." UK maintained that Mr. Teague's appeal is premature. This office respectfully disagrees. See 14-ORD-047; 16-ORD-153. UK was required to not only issue a written response within three days, excluding weekends and holidays, but also provide Mr. Teague with timely access to any existing nonexempt records per KRS 61.880(1), or properly invoke KRS 61.872(5), by citing that provision and giving a detailed explanation of the cause for delaying access, in addition to specifying a date when the records would be made available.
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." A public agency cannot generally postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time."
Fiduccia v. U.S. Department of Justice, 185 F.3d, 1035, 1041 (9th Cir. 1999); 01-ORD-140. For this reason, the 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. However, 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. Such a request does not relieve the agency of its procedural obligations.
The instant appeal was premised exclusively on the failure of UK to comply with procedural requirements of the Act. Specifically, KRS 61.872(5), the only provision of the Act that authorizes postponement of access to public records beyond three business days, provides that if public records are "in active use, in storage or not otherwise available," the official custodian of the public agency "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. " UK responded to Mr. Teague's October 17 request within three business days per KRS 61.880(1); however, even assuming that UK properly relied upon KRS 61.872(5), albeit implicitly, in advising him that the College of Law was experiencing "technical problems," i.e. , the server was completely down, and the potentially responsive e-mails were thus "not otherwise available," UK did not reference that provision initially or in any of the subsequent correspondence, nor did UK provide sufficiently detailed explanations of the cause for additional delays. Likewise, assuming that more specificity regarding the "earliest date" was not initially feasible under the circumstances, beyond advising that an update was expected "tomorrow or at the very latest Monday," UK did not estimate the number of documents implicated until November 11, and only did so then because Mr. Teague requested an update on the status of his request; UK then relied on the review and redaction process in addition to irrelevant factors, including the volume and nature of unrelated requests, in attempting to justify another delay.
The October 24 e-mail generally advised that the College of Law had "several more searches to conduct throughout the week . . ." and that the Open Records Office hoped to provide a "better response" as to a specific date by which a "formal response" could be expected. UK further advised that an update would be provided "the first of next week." A week later, on October 31, UK similarly observed that it would have a "better idea" of how long it would take to "go through everything" by "this time next week." Vague estimates of how long the delay will be have been deemed insufficient for purposes of complying with KRS 61.872(5), 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 expected to fill the request "within the next two weeks" did not suffice); 08-ORD-006. In addition, the need to review and redact did not constitute a detailed explanation as "[t]he need to review and 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; 16-ORD-206. Because this office had occasion to remind UK of its procedural obligations under KRS 61.880(1) and 61.872(5) as recently as last year, in 15-ORD-174 (In re: Melinda Gamble Lovern/University of Kentucky, rendered September 14, 2015)(copy enclosed), and the record on appeal presents no basis to depart from the reasoning upon which that decision was premised, the analysis contained at pages 5-7 is equally controlling here. As in 15-ORD-174, "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[.]" 5 However, the record again "lacks adequate detail for this office to determine whether the length of the delay was justified . . . ." Id., p. 7.
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 must 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 In failing to cite KRS 61.878(1)(k) and (l), pursuant to which FERPA (20 U.S.C. § 1232g et seq. ,), and the Kentucky Family Education Rights and Privacy Act (KyFERPA)(KRS 160.700 et seq.) , respectively, are incorporated into the Open Records Act, UK violated KRS 61.880(1), requiring 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."
3 Mr. Teague apparently calculated how many calendar days had elapsed rather than business days per KRS 61.880(1), "excepting Saturdays, Sundays, and legal holidays" from the calculation.
4 On December 2, 2016, UK advised Mr. Teague that it anticipated providing him with a response the following week but still failed to specify a certain date.
5 [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.