Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the University of Louisville ("University") violated the Open Records Act ("Act") in the disposition of multiple requests for records submitted by Anthony Clyburn ("Appellant").
Background
On February 1, 2019, Appellant submitted a request for records to the University through the Office of the University Counsel. The Appellant requested six groups of records related to Professor Shelley Santry ("Professor Santry"), which Appellant described as follows:
Professor Santry's employment history including salary, letters of recommendation/ reprimands/complaints, committee assignments, video or audio from university publications;
Copies of any campus police reports pertaining to my complaint about Professor Santry;
Professor Santry's responsibilities as a member of the ULAA, her supervisor in that capacity;
Correspondence from the General Counsel to Professor Santry regarding my complaints;
Copies of all letters from me to the University and responses;
Procedure to report Child Abuse on campus.
On March 13, 2019, Appellant submitted an appeal to this office stating that the University had not responded to his request. 1
On March 21, 2019, Senior Compliance Officer Sherri Pawson responded to the appeal on behalf of the University. Ms. Pawson argued that the University received the open records requests on February 7, 2019, "and acknowledged on February 8th." Ms. Pawson provided a copy of the University's initial response. She also included a March 4, 2019 letter that delayed production of the responsive records. In that letter, Ms. Pawson stated, "University officials continue working to identify records." She stated that the "very broad" wording of the requests was causing a delay because it required the University to contact "every University employee to fully identify records." However, Ms. Pawson informed Appellant that she identified two responsive records that would be withheld "under the attorney/client provision of KRS 61.878(1)(l). . .operating in tandem with KRE 503(b)[.]" Ms. Pawson stated that she expected "to have a final response no later than March 29, 2019."
On March 26, 2019, the University released responsive records to Appellant. However, Ms. Pawson informed him that additional records were withheld for the review of "persons who might claim a privacy interest in public records under KRS 61.878(1)(a)[.]" Ms. Pawson stated that a final response would be issued no later than April 10, 2019. On March 28, 2019, the Attorney General requested that the University provide this office with copies of all responsive records for the purpose of in camera review, pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3.
On April 10, 2019, the University provided this office copies of all responsive records, including those withheld, which it specifically identified. The University identified two pages of email messages withheld pursuant to the attorney/client privilege, and 40 letters of recommendation relating to Professor Santry "submitted by evaluators during the promotion process." The University claimed the letters are exempt pursuant to KRS 61.878(1)(i) and (j), 2 because "the writers work under an expectation of confidentiality. " The University also argued that disclosure of the letters would "constitute a clearly unwarranted invasion of personal privacy" pursuant to KRS 61.878(1)(a).
The University stated that no responsive records exist for Appellant's requests for "reprimands, video or audio from university publications, campus police reports pertaining to my complaint against Professor Santry, and correspondence from the General Counsel to Professor Santry regarding my complaints." The University also provided information relating to the search for responsive records. It described the search for responsive records and its contact with University employees expected to possess responsive records. The University stated that it directed the employees to search for responsive records and forward the results to Ms. Pawson's office for review.
No Basis for Finding a Violation of KRS 61.880(1) . Appellant argues that the University violated the Act by failing to issue a timely written response, which the University denies. While we have no reason to question Appellant's position, the record equally lacks any evidence refuting the University's position. Because insufficient evidence exists in the record, this office has no basis to find a violation of the time requirements of KRS 61.880(1). 3 See 19-ORD-057, p. 2 (absent irrefutable proof of the actual delivery and receipt of the request, there was insufficient evidence that public agency violated KRS 61.880(1)). As KRS 61.880(2)(a) provides, upon receiving an open records appeal, "the Attorney General shall review the request and denial and issue. . .a written decision stating whether the agency violated the provision of KRS 61.870 to 61.884." See OAG 89-91; 03-ORD-172; 12-ORD-204; 19-ORD-057.
The University Violated KRS 61.872(5) . We find that the University violated the Act when it failed to follow the proper procedure for delaying Appellant's access to records on three different occasions. If a response requires more than the three business days mandated by KRS 61.880(1), a public agency is required to specifically invoke KRS 61.872(5). 4 See 01-ORD-140, p. 3. The University did not specifically invoke KRS 61.872(5) in either its initial response, or its delay letters, or during the course of this appeal.
The University also violated the Act by failing to provide Appellant a detailed explanation for the cause of the delay. KRS 61.872(5) requires that "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain ." 01-ORD-38, p. 5 (emphasis added). Here, the University provided Appellant certain dates upon which it would produce the responsive records, but it did not provide a detailed explanation for the cause of the delay. On appeal, the University explained the delay by identifying the number of departments possessing responsive records and the complications involved in contacting employees possessing responsive records. The University further explained how the sparse description of the records complicated the search. This explanation constitutes a "detailed explanation," because it supports the delay by setting forth the volume of records involved and explains, in detail, the problems associated with retrieving the records. See 02-ORD-217. However, the University's failure to provide Appellant with that detailed explanation in its initial response and its delay letters violated KRS 61.872(5).
The University Properly Withheld Records Pursuant to Attorney-Client Privilege . Based on our in camera review, the University properly withheld two pages of email messages as a privileged communication. While we cannot discuss the content of records submitted for in camera review, we can describe the responsive email messages as communications between the University General Counsel, the University President, and law enforcement officers of the University police department. The messages contain requests for legal opinions related to an investigation, and legal advice and opinions from the General Counsel. These communications meet the criteria for the attorney-client privilege under KRE 503(b), operating in tandem with KRS 61.878(1)(l). 5
The Kentucky Court of Appeals has recognized that "the protections generally afforded by the attorney-client privilege have been recognized and incorporated into the [Open Records Act] by the Kentucky General Assembly."
Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. App. 2001). 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 representative, the lawyer, or the lawyer's representatives."
The St. Luke Hospitals, Inc., v. Kopowski, 160 S.W.3d 771, 776 (Ky. 2005)(quoting
Haney v. Yates, 40 S.W.3d 352, 355 (Ky. 2001)). The record establishes that the President and the officers are University employees represented by the General Counsel. Each message related to a legal dilemma facing the University, and there is no evidence that the communications were shared with third parties. As such, the email messages are communications between two of the four parties listed in KRE 503(b). Accordingly, we find that the University properly withheld the two pages of email messages as privileged attorney-client communications.
Letters of Recommendation are No Longer Preliminary . The University improperly withheld letters of recommendation written in support of Professor Santry. The record establishes that the University awarded the promotion or position Professor Santry was seeking. As such, the record does not support a finding that the letters of recommendation are "preliminary" within the meaning of KRS 61.878(1)(i) and (j). Accordingly, we find that the University violated the Act in withholding the records.
The University argues exemption under KRS 61.878(1)(i) is appropriate because the letters of recommendation are communications from private individuals submitted with an expectation of confidentiality. In OAG 91-48, we held that inspection of letters of reference could be denied as preliminary pursuant to KRS 61.878(1)[(i)], which exempts from public inspection "correspondence with private individuals." We found that such letters are not "correspondence between two public officials on public business within the contemplation of the Act, and are therefore exempt. " OAG 91-48, p. 3. However, in 98-ORD-155, this office distinguished letters of recommendation adopted as part of the basis for the agency's final action, which forfeited their preliminary characterization, and letters of recommendation that were not adopted as the basis for final action, which retain their preliminary characterization. We applied this principle in 95-ORD-35, where we decided that the University of Kentucky improperly withheld the portion of the Chancellor's letter to the President containing his recommendations relative to a faculty member's promotion. There, the President had approved the recommendation and then transmitted it to the Board of Trustees, which took final action approving the promotion. We found that Chancellor's recommendation was adopted by the Board of Trustees in its final action approving the promotion, and thus lost its preliminary character. Just as in 95-ORD-35, the record here establishes that Professor Santry was awarded the position or promotion sought. As such, the letters of recommendation are no longer afforded preliminary status.
Nevertheless, an agency may withhold reference information on an application or résumé that is of a personal nature, within the meaning of KRS 61.878(1)(a) and in accordance with KRS 61.878(4) . OAG 89-90; see also 05-ORD-046, p. 8 (agencies must release the names of references appearing on job applications and related documents, but may withhold information of a personal nature). "Such information includes, but is not limited to, an employee's home address, social security number, and medical information." 05-ORD-046; see also 93-ORD-32, p. 4. Accordingly, the University may redact information of a personal nature from the letters of recommendation in a manner consistent with KRS 61.878(1)(a), KRS 61.878(4), 6 and our prior decisions.
The University Corrected Violations of KRS 61.880(1) on Appeal . We find that the University violated KRS 61.880(1) 7 when it failed to advise Appellant that responsive records could not be located. However, the University corrected its violation on appeal. The right to inspect only attaches if the records in dispute are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p.10. However, the inability to produce the records because no records were created is "tantamount to a denial and. . .it [was] incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9; 09-ORD-019. While it is obvious that a public agency "cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient." 02-ORD-144, p.3; 09-ORD-145. The mandatory language of KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). Accordingly, this office has consistently recognized that a public agency violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," but discharges its duty under the Open Records Act in affirmatively so indicating. 98-ORD-154, p. 2; (citing 97-ORD-161), p. 3.
The University corrected the error by notifying Appellant of records that do not exist during the course of the appeal. Nevertheless, the burden of proof is imposed on the public agency by KRS 61.880(2)(c), and the University must offer some explanation for the nonexistence of the records. See
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" ); 12-ORD-195. In light of that duty, a public agency is required to "make a good faith effort to conduct a search using methods which can reasonably be expected to produce records requested[.]" 95-ORD-96, p.4 (citing
Cervey v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D.Colo. 1978)).
On appeal, Senior Compliance Officer Pawson provided a sufficient explanation for the nonexistence of the records to Appellant and this office. Ms. Pawson provided a meaningful categorization of the records to identify which requests the University denied due to the nonexistence of records. She identified locations where the University expected to find responsive records and provided a detailed description of the corresponding searches. Ms. Pawson also affirmed that she personally contacted the employees conducting the search for verification. Accordingly, we find that the University met its duty to conduct a good faith effort to locate responsive records and corrected its violation of KRS 61.880(1) relating to nonexistent records on appeal.
This matter is moot regarding responsive records located and provided to Appellant during the appeal. The University disclosed copies of those records to this office as verification. In accordance with 40 KAR 1:030, Section 6, 8 the Attorney General declines to issue a decision regarding the remaining issues related to those responsive records.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Appellant first appealed on February 15, 2019, but that appeal was dismissed due to a procedural defect, which Appellant corrected in his March 13, 2019 appeal.
2 Under KRS 61.878(1)(i) and (j), the following records are exempt from disclosure: "(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;" [and] "(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]"
3 KRS 61.880(1) states, in pertinent part: "Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request 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."
4 KRS 61.872(5) states: "If the public record is in active use, in storage or not otherwise available, 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."
5 KRS 61.878(1)(l) excludes: "Public record or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
6 KRS 61.878(4) states: "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination."
7 KRS 61.880(1) states, in pertinent part: "An agency 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action."
8 40 KAR 1:030 Section 6 provides: "Moot Complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter."