Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Gregory Ward Butrum initiated this appeal by letter dated April 4, 2017, challenging the disposition by the Louisville Metro Government ("LMG") of seven requests made by his wife (four on February 21), Rachael Butrum, an employee of the Louisville Zoo, for multiple categories of records pertaining to her "complaint with the EEOC [Equal Employment Opportunity Commission] for sexual harassment, hostile work environment, and retaliation. " Mr. Butrum focused primarily on the fact that LMG requested additional time in which to comply with each request and that LMG had not provided any records to Mrs. Butrum as of April 4. 1 The record on appeal establishes that LMG failed to fully discharge its duty under KRS 61.872(5), and in one instance KRS 61.880(1), but ultimately provided Mrs. Butrum with all existing responsive documents and reasonably asked Mrs. Butrum to narrow the scope of the remaining two requests in dispute to ensure that LMG is able to identify, locate, and provide all existing non-exempt documents. "[G]iven the number of requests by Mrs. Butrum in a short period of time, the breadth and scope of each request, the types of records requested, and the knowledge that one of the first requests turned up approximately 23,000 responsive records alone," this office finds the delays in providing access reasonable.
On February 21, 2017, Mrs. Butrum submitted four separate requests; two were directed to Human Resources, one was directed to the Louisville Zoo, and one was directed to the Mayor's Office. Mrs. Butrum requested the following records from Human Resources: 2
# 4776 (batch 1): Complete personnel files of 13 named employees in addition to her own. All emails and electronic files, pertaining to Rachael Butrum, charges, investigations, in re sexual harassment, workplace violence, hostile work environment, discrimination, retaliation, HR investigation, EEOC investigation, and files including the words "Butrum," AND "EEO," "EEOC," HR investigation," "Retaliation, " "sexual harassment, " "workplace violence," "hostile work environment, " "discrimination," "Complaint," "Williams," and "training" from September 15, 2016, through February 21, 2016 (presumably 2017). Mrs. Butrum sought "all records relating to my employment at the Louisville Zoo, relating to any claims I have made regarding sexual harassment, hostile work environment, and retaliation. "
# 4775 (batches 7 & 8): "Correspondence" pertaining to five named employees; identical "keywords" /description provided in # 4776 above with a timeframe of September 1, 2016, through February 21, 2017. Mrs. Butrum sought "all records relating to the termination/cessation of employment of Rich Williams from the Louisville Zoo[,] including but not limited to my involvement or mention in those documents. . . . all records relating to my complaints regarding sexual harassment, hostile workplace environment, retaliation, etc. during my employment with the Louisville Zoo."
In request # 4777 (batch 5) Mrs. Butrum sought "all records" from the Louisville Zoo concerning "my claims of sexual harassment, hostile workplace, [and] retaliation [,]" the personnel files "from the LOUISVILLE ZOO" for the same individuals named in # 4776, and "all emails concerning me to or from the [named individuals], and all emails concerning me to or from [six named individuals]," with Jefferson County Attorney Daniel Landrum included among them. 3 (Original emphasis.) The same "keywords" or search terms were again listed with a timeframe of September 1, 2016, through February 21, 2017. From the Mayor's Office (#4778, batch 4), Mrs. Butrum requested "Correspondence, " namely "all emails from [20 named employees] relating to me" from September 1, 2016, through February 23, 2017; she provided the same keywords/ description as in # 4775 and # 4776. Mrs. Butrum sought "all correspondence, including but not limited to emails, from, to, and between, the [named employees], concerning my employment at the Louisville Zoo, and my claims of sexual harassment, hostile workplace, retaliation, as well as any claims made by them against me."
On February 22, 2017, Mrs. Butrum submitted request # 4789, (batch 6) asking for "all records from the [LMG] Technolodgy [sic] Department, concerning DELETED and NON DELETED [emails] in my HR, and EEOC investigation." (Original emphasis.) Mrs. Butrum provided 13 keywords or search terms, including her name, in asking for all "files in employees['] computers containing any and all information that pertains to" her and the HR investigation or any of 10 other subjects (partially duplicative) from September 1, 2016, through September 22, 2016. Mrs. Butrum then submitted request # 4819 (batch 3) on February 25, 2017, seeking "all emails, and hard copy letters, to and from Michael Meeks, Director of Records Compliance, and any employee of the Louisville Zoo, including but not limited to Johan Walczak and Stephany Moore, from 2-15-17 to present" and from "2-25-17 to present, . . . any and all emails, and hard copy letters, from any employee of Records Compliance (formerly Open Records & Archive[s]), in response to a records request, advising the requestor that the request must be paid for prior to providing the records." She provided the following keywords: "Butrum remit payment bite reproduction/copy cost block slow delay avoid." Finally, on March 13, 2017, Mrs. Butrum submitted request # 4934 (batch 2) seeking additional records directly from the Louisville Zoo, namely, "[a]ll emails and files from Kelly Grether containing key words Solar Panels, Sustainability, Kramer Family, Sustainability Award Contest, winner, donation" from May 1, 2016, through October 31, 2016.
LMG responded to request numbers 4775, 4776, and 4778, within three business days per KRS 61.880(1), 4 advising in each instance that "a search for responsive records has been initiated but will require additional time." 5 In support of the delay, LMG relied upon the "potential volume and need for review of each item" in two instances and, similarly, the "large number of records that may be responsive" in the other and the ongoing review process "to determine whether any material is exempt from disclosure under the Open Records Act [.]" LMG expected the "process to be complete on or before April 14, 2017" as to request numbers 4776 and 4778, and on March 6 as to # 4775 (subsequently amended to April 14 but records were provided on April 7). The agency's response to Mrs. Butrum's remaining February 21 request, # 4777, was also timely under KRS 61.880(1), but otherwise deficient as discussed above (see n. 1). LMG did not respond to Mrs. Butrum's February 22 request, # 4789, until March 2, which violated KRS 61.880(1) by a narrow margin, but LMG has acknowledged "that it was not prompt in responding . . . and offers its apology for the untimeliness." Accordingly, this office will not belabor the point. Its boilerplate response was identical to its February 23 responses with the exception of the date by which LMG anticipated completing its review -- March 16; likewise, the March 2 response by LMG to Mrs. Butrum's February 25 request contained identical boilerplate language and specified a date of March 16. Finally, LMG issued an identical response to Mrs. Butrum's March 13 request on March 16, advising that its review process would be complete on or before April 25 and it would notify her as to "availability of nonexempt record copies." 6
Applicants making requests for a significant volume of records, like Mrs. Butrum, can "not reasonably expect agencies . . . to produce all responsive records within the three-day deadline. " 12-ORD-097, p. 6. That is particularly true when the requester submits multiple broadly framed requests within a short period of time. However, such a request(s) does not relieve a public agency of its procedural obligations. Absent from all of these initial responses by LMG was any reference to KRS 61.872(5), upon which it relied in delaying access (though it did invoke KRS 61.872(5) on appeal); LMG also failed to satisfy all of the requirements of this exception to KRS 61.880(1). 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." Although LMG did specify dates by which records would be made available, LMG did not specify which permissible reason for delay applied, if any, until after this appeal was filed. "Whether any delay beyond the statutory deadline was warranted turned on the adequacy of the [agency's] explanation." 14-ORD-226, p. 4; 16-ORD-153. 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 (finding a violation of KRS 61.880(1) as merely stating that records are "in use" or "in storage" does not constitute a "detailed explanation of the cause . . . for further delay"); 10-ORD-138 ("the record on appeal, being devoid of any detailed explanation for why the retrieval and redaction should take so long, does not support the [agency's] position that the delay is necessary"); 02-ORD-217; 12-ORD-227; 14-ORD-047; 16-ORD-206. Nor do "irrelevant factors, including the volume and nature of unrelated requests," constitute legitimate reasons for delay. 16-ORD-272, p. 5.
Following submission of this appeal (dated April 4 and received on April 10), LMG provided all existing responsive documents on the agreed upon dates with only a slight variation (as to # 4934); only request numbers 4777 and 4778 remain pending. Thus, LMG maintained that any issues related to records provided, i.e. , batches 1, 7, and 8, are now moot per 40 KAR 1:030, Section 6. 7 This office must respectfully disagree. "[U]nless all records identified in an open records request are released, not just those the agency deems nonexempt, the issue before the Attorney General is not moot." 09-ORD-007, p. 5 (original emphasis). With regard to records that were provided on April 26 (#4934), for instance, LMG advised that information was redacted "for privacy consistent with KRS 61.878(1)(a), confidential records consistent with "KRS 61.878(1)(c), and KRS 61.878(1)(i) for preliminary correspondence. " 8 Because questions regarding the propriety of the statutory exceptions that LMG invoked after this appeal was filed "have not yet been reviewed under KRS 61.880(2)," Mr. Butrum "may pursue a separate open records appeal with this office after [his review of the records] if [he] disputes a claimed exception." 14-ORD-196, p. 2. This office currently lacks adequate information to determine whether LMG properly relied upon any or all of the cited exceptions even assuming that consideration of those issues would not be premature. 9
With regard to # 4789 (Technology Department) and # 4819 (Office of Management and Budget, "OMB"), LMG advised Mrs. Butrum that no responsive records existed on March 16 and March 10, respectively. LMG further noted relative to # 4789 that a search of the Technology Department would be "a duplicate of previously submitted email searches." A public agency's failure to fulfill a request "on grounds of duplication is excused only insofar as the prior request is already disposed of." 15-ORD-181, p. 5; see 95-ORD-47; 04-ORD-018. Given the all-encompassing nature of Mrs. Butrum's February 21 requests, the associated searches by LMG would have necessarily included the Technology Department, whether specifically directed to it or not. 10 Assuming that LMG made "a good faith effort to conduct [searches] using methods which [could] reasonably be expected to produce the records requested," 11 as the record on appeal suggests, LMG cannot be said to have violated the Act in declining to conduct a repetitive or duplicative search. "In the absence of any facts or evidence from which the existence of additional responsive documents within the possession of the [LMG] can be presumed, this office has no basis upon which to find that a substantive violation was committed." 16-ORD-206, p. 5.
LMG did not elaborate in denying # 4819 based on the records' nonexistence, merely advising that "OMB has determined there are no responsive records." The right to inspect records, and the corollary right to receive copies, only attaches if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. A public agency cannot produce that which it does not have nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005) ("before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist"); 11-ORD-037; 16-ORD-134; compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence" ); 11-ORD-074; 12-ORD-195. "Absent proof that [LMG] failed to use methods which could reasonably be expected to produce the records requested, such as anecdotal evidence suggesting the records' existence or production of responsive records obtained from other sources," the Attorney General has no basis upon which to question its good faith. 12-ORD-153, p. 4. This office trusts "that [LMG] directed its search not only to the first and most obvious places where responsive records could be located but to all places that might yield responsive records." 12 Id. If so, LMG did not violate the Act in denying a request for nonexistent records though no extension of time was justified. 12-ORD-105, p. 7.
With production of documents responsive to # 4934 on April 26, the requests that remain in dispute are # 4778 ("all correspondence, " etc. from the Mayor's Office) and # 4777 (personnel files and "all emails. . .." from the Louisville Zoo). In his April 19 letter to Mrs. Butrum, addressing # 4777, Mr. Meeks advised the search based on the request as framed on February 21 "returned approximately 23,049 records." Mr. Meeks further indicated that it "would take 3 to 5 minutes each to review and redact" said records, for a total of "1,152 to 1,920 hours. The process could take from 29 to 48 weeks," based on a 40-hour workweek, or "from 5.86 to 9.6 months to complete, depending on staff availability, a substantially longer period of time." LMG did not cite KRS 61.872(6), but asserted that complying would place "an unreasonable burden upon the agency[.]" 13 Rather than deny the request outright, Mr. Meeks reasonably suggested "limiting or narrowing the request and conducting a more limited search that would yield the most results you are seeking, in a shorter time frame," and offered to either meet in person or discuss ways to resolve the matter by telephone. Having received no response, on April 20 Mr. Meeks advised Mrs. Butrum that he conducted a search using modified criteria (results unknown) that he believed might reduce the number of responsive documents; Mrs. Butrum had not responded as of April 24. 14
On April 21, Mr. Meeks corrected slight calculation errors made in his April 14 response to Mrs. Butrum's February 21 request, # 4778. The search based on how Mrs. Butrum framed the request located "approximately 7,796 records that may be responsive. " The review and redaction of each record, Mr. Meeks explained, "would take 3 to 5 minutes," or "from 389.8 to 649.6 hours. The process could take from 9.7 to 16.2 weeks," based on a 40-hour workweek to complete, "depending on staff availability." Mr. Meeks relied upon KRS 61.872(6) in asserting that complying with # 4778 "(as currently drafted)," 15 would place an unreasonable burden on LMG but offered to assist in locating and obtaining the relevant documents; 16 again, LMG had not received any response as of April 24. Mrs. Butrum subsequently agreed to meet with Mr. Meeks in order to help facilitate a resolution of the requests that have not been satisfied yet; however, she later canceled the meeting.
This office has recognized that "broadly worded requests for 'all email' sent or received by a particular person or persons, or related to a particular subject, or within a stated timeframe, have become increasingly common." 12-ORD-097, p. 6, n. 4. Although such requests cannot properly be characterized as "improper," they also "could not have been envisioned by the General Assembly" when it designated a statutory deadline of three working days for production of public records in 1976 when the Open Records Act was enacted. Id. Applicants making such requests, like Mrs. Butrum, "cannot reasonably expect agencies to which these requests are directed to produce all responsive records within the three-day deadline. " Id. Thus, applicants are "urged to frame their requests as narrowly as possible and, if unable or unwilling to do so, to expect reasonable delays in records production." Id.
Either party may appeal this decision may appeal 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.
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