Opinion
Opinion By: Janet Creech,Dana Fohl;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Eastern Kentucky University (EKU or "the University") violated the Open Records Act in its disposition of a request for records pertaining to the elimination of the Director of Marketing position. 1 For the reasons stated below, we find that EKU did not violate the Act.
Janet Creech submitted an open records request to EKU by letter dated February 15, 2017, in which she made the following requests:
Under the Kentucky Open Records Act § 61.872 et seq. , I am requesting to inspect public records of any and all information related to the "critical review of Marketing and Communications organizational structure and consideration of all the competing needs for the department" that led to the elimination of the position of Director of Marketing per the notification letter presented to me on January 12, 2017.
The requested records are to include, but are not limited to, any and all notes, printed, electronic and handwritten from in-person meetings, telephone conversations, and electronic meetings such as Skype and FaceTime; emails; text messages; and all other print or digital records that were created, copied, electronically saved or otherwise filed including specifically any communication authored by, sent to, received by or otherwise exchanged between any of the following Eastern Kentucky University employees: Laurie Carter, Sarah Pitt, Jessica Ehrhart, Joslyn Glover, Doug Cornett, Kristi Middleton, and Brandon Moore. In addition, I am requesting all of the same print or digital records with others not specifically named above. The time period for which records are requested is October 20, 2015, to the current date.
Additionally, I am requesting a copy of the complete personnel record, without restrictions, for Janet R. Creech to include any employment records held by Human Resources, the Executive Vice President, and the Assistant Vice President for Communications and Marketing, as well as access to any public record relating to me in which I am mentioned by name.
EKU responded to Ms. Creech's request on February 20, 2017, stating that, due to the broad nature of the request and need to review and redact records, it would need until February 24, 2017, to provide the requested records. On February 24, 2017, EKU sent Ms. Creech 57 files totaling 440 pages of records. 2 In the February 24 letter, EKU denied Ms. Creech's request for "all of the same print or digital records with others not specifically named above" as being "unduly burdensome, overly broad and does not describe records available to the University. KRS 61.872(3) & (6)." EKU explained that it had conducted a search of the university email servers and identified 45,671 emails sent or received by Ms. Creech herself, and approximately 225,000,000 (225 million) total items responsive to her request for "any public record relating to me in which I am mentioned by name." EKU cited KRS 61.872(3) for the proposition that Ms. Creech did not "precisely describe" the records sought, and cited KRS 61.872(6) and 14-ORD-109 in support of its claim that the time and manpower required to review those emails for applicable exemptions and redaction was unreasonably burdensome. Ms. Creech appealed EKU's response to this office by letter dated March 17, 2017. Ms. Creech challenged EKU's claim that her requests were unreasonably burdensome; that it was "highly likely" that EKU had not produced all responsive records because it had not searched employee cell phones and hard drives; and because there was not detailed documentation in the personnel file records that had been provided to her that addressed the elimination of the Director of Marketing position. Ms. Creech also opined that EKU had not provided all responsive records from Laurie Carter, Executive Vice President for Student Success, as Ms. Carter would have had approval authority for the decision to eliminate the Director of Marketing position.
By letter dated March 27, 2017, Dana Fohl, Deputy Counsel, responded to the appeal on behalf of EKU. The arguments put forth by Ms. Fohl, and our analysis of those arguments are as follows:
Others Not Specifically Named . Although Ms. Creech's appeal challenged EKU's statements regarding the unduly burdensome nature of her request for "all of the same print or digital records with others not specifically named above," we conclude that Ms. Creech's appeal modified that broad request. In her March 17, 2017, appeal, Ms. Creech admitted that there were only a limited number 3 of employees who would reasonably have been involved in the decision to terminate her position. She stated that the University should be required to focus upon records created by those employees and should have asked for clarification of her request. EKU's response to the appeal explained that it had done essentially what Ms. Creech asked, by providing: "Records for the employees identified [in Ms. Creech's open records request], as well as some not, and records specifically requested were produced along with other tangentially related to the departmental reorganization . . . All records related to the reorganization and position elimination have been produced," and "all known records related to the reorganization of the Communications and Marketing Department and the elimination of the Director of Marketing position."
The actions taken by EKU satisfy the standard for an adequate search recognized in 95-ORD-96. EKU made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested." 95-ORD-96, p. 3, citing
Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978). EKU's search met the parameters of Ms. Creech's modified request (see footnote 3 herein), and we find no violation of the Act by EKU in focusing its search for responsive records on that limited number of employees who, as stated by Ms. Creech, would have been involved in the decision to terminate her position and who would thus be the persons with responsive records.
Unreasonably Burdensome Request : EKU objected to Ms. Creech's request for "access to any public record relating to me in which I am mentioned by name" as being unreasonably burdensome. The University explained that the Information Technology staff identified 45,671 emails from Ms. Creech's email account alone, and 225 million items from faculty and staff emails in which Ms. Creech was mentioned by name. EKU also stated that there are over 100,000 student email accounts which would also have to be searched under this request. EKU stated that these files would have to be reviewed by University staff for necessary exemptions and redactions. "The University time and manpower required to complete such a tall task is purely the result of the expansive scope of the Request and thus, places a substantial and unreasonable burden on the University."
KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
A claim of unreasonable burden requires the weighing of the competing interests of public access to agency records and the agency's own interest "in effectively executing its public function." 00-ORD-72 (citing 96-ORD-155). Before the Kentucky Supreme Court decision in
Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008), the Attorney General rarely found that the burden imposed on a public agency in producing public records was sufficiently unreasonable to justify invocation of KRS 61.872(6). Chestnut determined that a public agency "faces a high proof threshold [in denying a request based on KRS 61.872(6)] since the agency must show the existence of the unreasonable burden by clear and convincing evidence, " Chestnut at 664, and that it cannot rely on "inefficiency in its own internal record keeping system to thwart an otherwise proper open records request." Id. at 665. "The obvious fact that complying with an open records request will consume both time and manpower, " the court concluded, "is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden. " Id.
In 14-ORD-109, we determined that a request for 6,200 emails was unreasonably burdensome for the Spencer County Board of Education due to the sheer volume of records, coupled with the mandatory nature of the privacy provisions of the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, et seq. , and/or the Kentucky Family Education Rights and Privacy Act (KyFERPA), KRS 160.700, et seq. In the present case, EKU would have to devote years 4 of staff time to review, for mandatory exemptions under FERPA 5, the 225 million responsive records that mention Ms. Creech by name before releasing those records. Balanced against this substantial investment of public resources is the public interest in having access to all records that mention Ms. Creech by name. It would appear that there would be marginal value to the public in producing these millions of records in return for what would be an enormous investment of public resources by EKU to produce and review those millions 6 of records and then to make mandatory redactions before releasing the records. In weighing these competing interests, we find that it would be an unreasonable burden for EKU to review and produce all records that mention Ms. Creech by name. 7
Records from Personal Devices & Local Drives . Ms. Creech also opined that University employees would likely have relevant records on their personal cell phones because the University provides stipends for those employees who maintain cell phone service as required by their jobs. Although Ms. Creech states that the University "took no affirmative measures to comply with" her request on this point, EKU's response disagreed:
"First the University relied upon the employees identified in Creech's Request to send to University Counsel's office any and all responsive records, including emails, texts, and voicemails. This approach identifies individual employees who could have responsive records, and addresses Creech's concern that employees could store responsive documentation locally on their devices. (See Appeal, pg. 2). A number of locally-stored files were produced in the University's Response." Likewise, the University worked with the Information Technology staff to do broad searches of the University's email servers for emails, voicemails, and Skype for business conversations . . .There were no relevant Skype or text messages to this Request. . . There are no electronic records to produce beyond those otherwise produced."
The measures taken by EKU to locate responsive records in locally stored files and on personally owned devices appear calculated to generate responsive records from those individuals who were specifically named in the open records request and who would have responsive records. We find no violation of the Open Records Act by EKU in regards to producing responsive records from individuals.
Attorney-Client Privilege and Work-Product Doctrine . Ms. Creech stated that Laurie Carter is both the Executive Vice President for Student Success, and University Counsel, and that Ms. Carter was acting as the Executive Vice President when the termination decision was made and that EKU should not be able to shield her records behind the work-product doctrine and attorney-client privilege. 8 In response, EKU provided the relevant undisclosed records to this office for our in camera review pursuant to KRS 61.880(2)(c) and 40 KAR 1:030(3).
KRS 61.878(1)(l) exempts from the Open Records Act "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." "The attorney-client privilege attaches to a confidential communication 'made to facilitate the client in his/her legal dilemma and made between two of the four parties listed in [KRE 503]; the client, the client's representatives, the lawyer, or the lawyer's representatives.'"
The St. Luke Hosps., Inc. v. Kopowski, 160 S.W.3d 771, 776 (Ky. 2005). "The protections generally afforded by the attorney-client privilege have been recognized and incorporated into the statute by the Kentucky General Assembly."
Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. Ct. App. 2001). "The privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice."
Upjohn Co. v. United States, 449 U.S. 383, 390 (1981).
However, "the attorney-client 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."
Commonwealth, Cabinet for Health and Family Servs. v. Scorsone, 251 S.W.3d 328, 330 (Ky. 2008). "KRE 503(b) only applies when . . . all three of the following elements are present: 1) relationship of attorney and client; 2) communication by or to the client relating to the subject matter upon which professional advice is sought; and 3) the confidentiality of the expression for which the protection is claimed." 12-ORD-075.
In reviewing the privileged records provided by EKU, we determined that (1) the attorney-client relationship existed between the EKU staff attorneys and the EKU staff members who (2) communicated to each other requesting and providing professional legal advice, and (3) the communications from the EKU staff attorneys included a statement of confidentiality claiming that the communications are privileged. We thus determine that these communications were properly withheld under the attorney-client privilege. As we have determined that the communications between EKU attorneys and staff that were responsive to Ms. Creech's request were properly withheld on the basis of attorney-client privilege, we will not further address the alternative claim that these communications were privileged under the work-product doctrine.
EKU has asserted that "Ms. Carter has no records responsive to the Request that have not otherwise been identified in another location and produced." We find that there were no responsive emails to or from Ms. Carter withheld on the basis of the attorney-client privilege.
Although we cannot specifically describe these communications, our review of these records indicate that they would not materially advance Ms. Creech's knowledge of the "'critical review of Marketing and Communications organizational structure and consideration of all the competing needs for the department' that led to the elimination of the position of Director of Marketing."
Records Required by EKU Policy . Ms. Creech's appeal also referenced an "Interim Staff Reduction in Force Policy" as requiring Laurie Carter, as Vice President, to approve all Staff Reduction in Force Plans. Ms. Creech asserted that since Ms. Carter was responsible for such approvals, and such approval documents were not provided to her, EKU must be withholding those records of Ms. Carter. EKU answered that Ms. Creech was referencing a policy that was "no longer in effect, and in fact was removed from the policy database on August 17, 2016, well before Creech's separation. To the extent the policy she quotes requires certain records to exist, that policy is no longer applicable." As EKU has answered that Ms. Carter has no records responsive to the request not otherwise provided, and has stated a plausible reason for there to be no records pursuant to the (withdrawn) policy, we find no violation by EKU in not providing these nonexistent records. The University cannot "afford a requester access to records which do not exist." 99-ORD-98. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 99-0RD-150. Moreover, an agency is not required to "prove a negative" when explaining that it does not have a record or that it does not exist. 09-ORD-194; compare, 16-ORD-101 (existence of a statute directing the creation of the requested record creates a presumption of the record's existence).
Lack of Detailed Documentation in Personnel File . EKU also answered Ms. Creech's complaint regarding the lack of "detailed documentation within [her] personnel file" by stating that "While Human Resources certainly keeps a file regarding the supporting documentation related to the job elimination and/or departmental reorganization, those records are kept in a separate file, a copy of which has been produced to Creech in the University's Response. Creech's entire personnel file and the HR file related to the job elimination have been produced. The personnel file is a non-issue." Although the responsive records from her personnel file did not meet Ms. Creech's expectations for "detailed documentation, " the University cannot "afford a requester access to records which do not exist." 99-ORD-98.
For the reasons stated, we find no violation of the Open Records Act in EKU's disposition of Ms. Creech's requests for records.
Either party may appeal this decision 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 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 By letter of January 12, 2017, Ms. Creech was informed by EKU that "After a critical review of Marketing and Communications organizational structure and consideration of all the competing needs for the department, we regret to inform you that your Director of Marketing position will be eliminated as of January 27, 2017." The letter separated Ms. Creech from employment at EKU.
2 Ms. Creech provided those records to this office for our review.
3 Ms. Creech's appeal stated: "There are a limited number of employees in Human Resources, the Office of Equity and Inclusion and Marketing and Communications, along with the President of EKU and the Vice President of Finance and Administration, to whom Human Resources reports, who would reasonably have been involved in the decision to terminate my position . The University should be required to focus upon records created by those employees to identify relevant documentation. The University should have asked for clarification should there have been a genuine intent to comply with my open records request." (Emphasis added).
4 Our calculations show that reviewing the 225 million items identified by EKU's information technology staff as mentioning Ms. Creech by name would take over 29 years of staff time to review all of these items, even at just one second per item.
5 FERPA regulates access to "education records," which is defined at 20 U.S.C. § 1232g(4)(A). In general, FERPA prohibits, with certain exceptions, the disclosure of personally identifiable student information to the public in the absence of a parent or eligible student's prior written consent. See 04-ORD-052, p. 6. In a supplemental communication between EKU and this office, Ms. Fohl confirmed that records, mentioning Ms. Creech by name, would have to be reviewed for redaction under FERPA before being released. FERPA is incorporated into the Open Records Act under KRS 61.878(1)(k) which excludes from disclosure: "All public records or information the disclosure of which is prohibited by federal law or regulation."
6 Chestnut, supra, was dismissive of the public agency's claim of an unreasonable burden, in part, because the Court found the agency's internal method of recordkeeping increased the burden of collecting and producing the responsive records. In the current instance, we have no evidence that EKU's record keeping system is inefficient.
7 As we have upheld EKU's objection to Ms. Creech's request for "any public record relating to me in which I am mentioned by name" under KRS 61.872(6) as an unreasonably burdensome request, we will not address EKU's alternate objection, under KRS 61.872(3)(b), that Ms. Creech did not "precisely describe" the records sought.
8 EKU explained that because of her dual role as Executive Vice President and University Counsel, Ms. Carter recused herself any legal work as it related to the reorganization of the Communications and Marketing department because Communications and Marketing was within her area of responsibility as Executive Vice President. Because of that recusal, EKU explained, Ms. Carter did not have responsive records in her role as University Counsel.