NOT TO BE PUBLISHED
January 30, 1997
In re: R. Keith Cullinan/University of Kentucky
Open Records Decision
This matter comes to the Attorney General on appeal from the University of Kentucky's denial of Mr. R. Keith Cullinan's open records request for that agency to retrieve and provide a copy of a signed agreement between Mr. Davy Jones, a faculty member, and Mr. William Jacobs, Esq., a private attorney, concerning fees to be paid to Mr. Jones in return for providing his consultative expertise and advice on information related to University records. The signed agreement, at the time of the request, was in the possession of attorney Jacobs.
By letter dated July 12, 1996, Mr. George J. DeBin, Official Records Custodian, on behalf of the University, denied Mr. Cullinan's request, stating:
I do not believe the documents you are requesting, which may be in the hands of individual faculty members, are public records as defined in KRS 61.870(2), in that they do not appear to be prepared, owned, used in the possession of or retained by a public agency. Therefore, I decline to inquire of Professor Jones, or any other faculty, about those activities which, as you note in your letter, are excluded from the University approval requirements.
By letter dated September 9, 1996, addressed to both the University and Mr. Jacobs, Mr. Cullinan indicated that he had submitted an open records request to Davy Jones for a copy of the agreement between Mr. Jones and Mr. Jacobs. In discussing Mr. Jones's response to his request, Mr. Cullinan states:
He [Davy Jones] notes that there is an official record of agreement setting forth the terms of his receipt of such fee income, and that he both uses and controls such record. He states that this record, which he acknowledges he uses, controls and constructively possesses, is currently at the office of William Jacobs, a private attorney who does not represent Dr. Jones or the University, but who represents a private party in a case that needed Mr. Jones' expertise.
Since Dr. Jones has the use and control of these records in his official capacity as a paid University employee, such records are subject to the Open Records Act. Thus, I am submitting to both of you simultaneously this Open Records request for the record of the Terms of Agreement for payment of consultant fees that Dr. Jones' letter describes. Under the Open Records Act, a proper response would be for Mr. DeBin to engage the assistance of William Jacobs to retrieve the document (or at least a copy of it) so that Mr. DeBin can then provide a copy to me.
(Emphasis in the original.)
By letter dated September 17, 1996, Mr. DeBin responded to Mr. Cullinan's letter of September 9, advising him:
A copy of my July 12, 1996 letter to you is attached for reference. As I advised you in that letter, I do not believe the documents you are requesting, which may be in the hands of individual faculty members are public records as defined in KRS 61.870(2), in that they do not appear to be prepared, owned, used, in the possession of or retained by a public agency. In this instance, I do not believe that a document in the possession of a private attorney is an open record. Further, under the Open Records Act, I do not believe that I am required to go outside this public agency to retrieve a record you believe to be a public record. If Dr. Jones wishes you to have a copy of his agreement with Attorney Jacobs, then he should provide it to you.
You have previously been advised by this office, as well as by Davy Jones, that the activities performed by him under this agreement with Attorney Jacobs, are excluded from the University approval requirements.
Along with his letter of appeal, Mr. Cullinan enclosed a copy of a letter, dated September 13, 1996, from Mr. Jacobs to Mr. DeBin in reference to the September 9 letter from Mr. Cullinan to both of them. In that letter, Mr. Jacobs states:
With respect to the agreement characterized by Dr. Jones, I do not see that that is reachable by this process. I have such document. Though, as of this writing, your office has not requested that I furnish you a copy of it, I would decline to furnish it on grounds of attorney-client privilege.
Mr. Cullinan appeals the University's denial of his request to retrieve and provide him with a copy of the agreement. He argues, in sum, that the agreement between Mr. Jones and a private attorney (concerning fees to be paid to that public officer in return for his providing consultative expertise), on paid University time, is a public record reachable under the Open Records Act.
Citing University Administrative Regulation, AR II-1.1-1, which provides that faculty members may render outside professional consulting services, Mr. Cullinan argues that Mr. Jones was acting under the authority of this regulation, and thus acting on behalf of the University when he entered into the consulting agreement with Mr. Jacobs. He further reasons that the consulting agreement is a public record, under KRS 61.870(2), because it was in part prepared by Mr. Jones (through his signature), is relied upon and thus used by him, and that it is controlled and constructively possessed by him.
On January 2, 1997, we sent the University a Notification of Receipt of Open Records Appeal and enclosed a copy of Mr. Cullinan's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. DeBin, on behalf of the University, provided this office with a response to the issues raised in the appeal. In his response, Mr. DeBin states:
The records apparently sought by Mr. Cullinan, as stated in his appeal, are not in the possession of the University of Kentucky or any employee of the University of Kentucky. Thus, even if Dr. Jones were acting on behalf of the University when entering into this consulting agreement with attorney William Jacobs (and the University expressly disclaims that Dr. Jones was acting for or on behalf of the University), under the holding of OAG 91-15, any records which were returned by Mr. Jones to Mr. Jacobs and are in Mr. Jacobs's exclusive possession are not public records. See OAG 91-15 at pages 4-5. Obviously, the University cannot provide access to documents for [sic] which it does not have custody. If records are not retained by a public agency, they are private records, and are beyond the reach of the Open Records Act. OAG 91-72 at page 6, relying on OAG 89-7.
In summarizing the University's position on the issues raised in this appeal, Mr. DeBin states as follows:
1. Mr. Cullinan characterized the agreement between Professor Jones and Mr. Jacobs as an agreement between a University public officer and a private entity. The University denies that Dr. Jones was acting as a public officer or employee when he signed an agreement with Mr. Jacobs. Mr. Jones is allowed to engage in any such consulting as a private citizen. For convenience I have attached the full text of the University's regulations relating to faculty consulting and workload. The regulation itself is styled Faculty Consulting and Other Overload Employment Outside the University. Mr. Jones has no official University assignment to provide information about the University to anyone. Dr. Jones' specialty is entomology, and he is associated with the Graduate Center for Toxicology. He holds no University office or position other than Professor, and is not authorized to speak for or contract on behalf of the University.
2. Because faculty have irregular hours and varied job responsibilities which do not fit into a regular 40 hours work week (see regulation entitled Faculty Workload Policy Statement), the fact that faculty are allowed to consult does not mean that any consulting activities are done on time for which they are being paid for University duties. Thus, there is no public interest in the limited consultation activities that this appeal addresses. Mr. Cullinan has already requested and has been provided records relating to those consulting activities for which the University requires documentation on official University forms, when the consultation is other than nominal. Any of the activities which do not require approval, i.e., occasional service on review panels, occasional lectures or seminars at other institutions, occasional office or telephone consultation, or occasional other professional services as set out in the regulation, are de minimus to any of the activities normally carried on by the University as its business, and thus there is no public interest to be served in inspecting any documents which might exist relating to this type of consulting, for Dr. Jones or any other faculty member. The University views any such consulting on the part of faculty to be private activity of individual faculty members. The consulting regulation specifically states that faculty must not use the name of the University of Kentucky in such a manner as to suggest institutional endorsement. . . . Other than time limitations set out in the regulations, a primary concern of the University is that faculty members avoid conflict of interest situations.
We are asked to determine whether the University's response in which it declined to retrieve and provide Mr. Cullinan with a copy of the agreement was consistent with the Open Records Act. For the reasons which follow, we conclude that it was.
In an early opinion, this office observed:
There are two legal thresholds which must be crossed by a person seeking to compel access to documents under the Open Records Law, KRS 61.870 to 61.884; (1) the custodian of the records must be a public agency as defined in KRS 61.870(1), and (2) the documents to be inspected must be public records as defined in subsection (2) of the same statute. Unless and until those thresholds are crossed it is not necessary to consider the provisions of the law pertaining to exemptions (KRS 61.878) or pertaining to an unreasonable burden in producing voluminous public records (KRS 61.872[(6)].
OAG 82-27, p. 3 (overruled on other grounds in OAG 82-277). In the instant appeal, the custodian of the disputed record is a private attorney, and therefore not a public agency as defined in KRS 61.870(1). The disputed record itself is not a public record, as defined in KRS 61.870(2), because it is not prepared, owned, used, in the possession of or retained by a public agency.
The facts presented in this appeal are analogous to the facts presented in 95-ORD-125. We believe that that decision, coupled with the Kentucky Court of Appeals' opinion in Kentucky Central Life Insurance Co. v Park Broadcasting of Kentucky, Inc., Ky. App., 913 S.W.2d 330 (1996), and the United States Supreme Court's opinions in Forsham v Harris, 445 U.S. 169, 63 L.Ed.2d 293, 100 S.Ct. 978 (1980) and Kissinger v Reporters Committee for Freedom of the Press, 445 U.S. 136, 63 L.Ed.2d 267, 100 S.Ct. 960 (1980), support the University's denial of Mr. Cullinan's request.
In 95-ORD-125, this office held that the Louisville Firefighter Pension Fund properly denied a request for confirmation tickets reflecting investment transactions made on its behalf by a private corporation with which the Fund had contracted to manage its assets. Because the confirmation tickets were neither possessed nor used by the Fund, we concluded that they could not be characterized as public records as defined in KRS 61.870(2).
See also, 96-ORD-41 (holding that the Department of Military Affairs properly denied the request for records relating to vending services at an air national guard facility where those records were prepared by, and in the possession of, a private corporation, and were never in the Department's possession).
This position is generally consistent with the standard articulated by the United States Supreme Court in Forsham v Harris, 445 U.S. 169, 186, 100 S.Ct. 978, 987, 63 L.Ed.2d 293 (1980), and Kissinger v Reporters Committee for Freedom of the Press, 445 U.S. 136, 152, 100 S.Ct. 960, 969, 63 L.Ed.2d 267 (1980). In these opinions, the Court held that an agency must first either create or obtain a record as a prerequisite to it becoming an agency record within the meaning of the (Freedom of Information Act, 5 USCS §552). Forsham at 63 L.Ed.2d 305. The Court rejected the notion that a public agency's right of access, and its right to obtain custody of records, brought those records within the reach of the Act, concluding that FOIA applies to records which have been in fact obtained, and not to records which merely could have been obtained. Forsham at 63 L.Ed.2d 307.
Although the Kentucky Open Records Act does not track the language of the federal act, the laws are identical in at least one significant respect: neither law imposes a duty on the public agency to create records. Thus, the Supreme Court's holding that [b]y ordering [a public agency] to exercise its right of access, we effectively would be compelling the agency to `create' an agency record since prior to that exercise the record was not a record of the agency[,] applies with equal force to agencies governed by the Open Records Act. Forsham at 63 L.Ed.2d 308.
Accordingly, for reasons set out below, we find that Mr. Cullinan has not crossed the two legal thresholds identified in OAG 82-27, i.e., the custodian of the records he seeks is not a public agency, and the documents he wishes to inspect are not public records.
In the instant appeal, Mr. DeBin asserts that Dr. Jones was not acting on behalf of the University when he signed the agreement to provide consulting services to Mr. Jacobs on information related to University records. He explains that Mr. Jones's official University assignment is in the field of or the specialty of entomology; that he has no official assignment to provide information about the University's records. Mr. DeBin further states that because faculty members have irregular hours which do not fit into a regular 40 hour week, the fact that they are allowed to consult does not mean any such consulting is done on University time.
A review of the University's Administrative Regulation, AR II-1.1-1, entitled Faculty Consulting and Other Overload Employment Outside the University, is supportive of the University's position. In Section I. A., University Policy, the University acknowledges the value of outside consulting to faculty, particularly when it is within the member's professional area, stating in part:
Personal participation in professionally relevant consulting activities should enhance a faculty member's competence as a teacher and a researcher.
However, the policy statement makes it clear that the outside consulting should not interfere with the faculty member's fundamental responsibilities. Regarding this priority, Section I. A. states:
With appropriate prior administrative approval, a faculty member employed on a full-time basis may render professional consulting services in the public interest to an individual association, governmental agency, business, or others. Such consulting activities, however, should not interfere with the fundamental responsibility of a faculty member to meet regularly assigned duties and obligations to teaching and research, including being regularly available to students and colleagues, which are normally expected of a full-time faculty member and for which the faculty member receives compensation from the University.
Mr. DeBin's response indicates that in addition to occasional consulting services, which do not require University approval, are consulting services which faculty members engage in as private citizens and which fall outside the activities normally carried on by the University as part of its business.
Kentucky's Open Records Act applies only to records which are in existence, and in the possession or control of a public agency. The University, in its judgment, determined that Mr. Jones was not acting as a public officer on behalf of the University when he entered the agreement with Mr. Jacobs. It takes the position that the agreement was not a record that was required, under its regulations, to be prepared, owned, used, in the possession of or retained by the University. Accordingly, we conclude that the agreement is not a public record prepared or possessed by the University.
The Act does not impose an obligation on agencies to create, procure, or retrieve a record to accommodate a request. This is not to say that a public agency can somehow secret away public records on private premises, and thus avoid the requirements of the Open Records Act. See, e.g., 95-ORD-126. However, it is not the function of this office, in an open records appeal, to substitute its judgment or the judgment of a third party for that of a public agency in deciding what records need to be created or retained. 95-ORD-125.
The record in this case is exclusively in the possession of the private attorney. In fact, Mr. Jacobs, in his September 13, 1996, letter to Mr. DeBin, asserts that the agreement is not reachable by the Open Records Act and would decline a request from the University for a copy of it on grounds of the attorney-client privilege. We have previously held that if records of private entities or agents are in the possession of or retained by a public agency, they are, in general, subject to inspection. OAG 91-72. If the records are not retained by a public agency, on the other hand, they are private records and are therefore beyond the reach of the Open Records Act. OAG 89-7.
Accordingly, we conclude that the University's denial of Mr. Cullinan's request to retrieve and provide a copy of the consulting agreement was proper and consistent with the Act.
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 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.
A. B. Chandler III
James M. Ringo
Assistant Attorney General
R. Keith Cullinan
1406 Browns Lane
Louisville KY 40207
George J. DeBin
Official Records Custodian
11 Administration Building
University of Kentucky
Lexington KY 40506-0032