NOT TO BE PUBLISHED
96-ORD-171
August 8, 1996
In re: Davy Jones/University of Kentucky
Open Records Decision
This matter comes to the Attorney General on appeal from the University of Kentucky's responses to a series of open records requests submitted by Davy Jones. On April 22, 1996, Mr. Jones requested copies of records described as follows:
With respect to the University policies described on sections found on pages 33-38, 52, 58-59, and 136 of the 1995 Faculty Handbook, and with respect to the statement in the preface that not all policies have been referenced in the Handbook, I request:
a copy of each unreferenced document used as the basis of or the language for the policy descriptions found in the sections on those pages, where the specific identity of the document(s) used is not referenced in those sections.
Mr. Jones explained that he had conducted a search of various official publications, including the University's governing regulations, administrative regulations, senate rules, personnel policies and procedures manual, records retention and disposal schedule, and applicable statutes, and determined that “there is language used in the Handbook sections on the page numbers mentioned above that is not language found in any of these official documents.” From this, he concludes:
[T]here exists other official documents . . . that served as the basis of or the language for the policy descriptions found in those sections on those pages, and which, as described by the preface statement and Handbook appendix I are unreferenced official documents that may include but not be limited to official administrative policy memoranda.
It is to these “unreferenced official documents” that Mr. Jones seeks access.
In a response dated April 26, 1996, University records custodian George DeBin advised:
Pursuant to the rationale expressed by the Attorney General in 95-ORD-150 and 96-ORD-91, this is to advise you that your request will not be honored. I cannot determine what record you are requesting from us. You seem to be asking for references to “unreferenced documents.” If there were references to the unspecified unreferenced language contained on the pages you cite, I would be happy to provide those documents, but under the language of the Opinions cited above, I am not obligated to perform the research that would be necessary to try to answer your extremely vague and confusing request.
In a follow-up letter to this office dated July 30, 1996, Paul C. Van Booven, deputy general counsel, elaborated on the University's response. Noting that Mr. Jones asked for “unreferenced” University documents from which the Handbook language was drawn, Mr. Van Booven observed:
Mr. Jones erroneously assumes that since words or language appears in the Handbook, then there must ipso facto, be some sort of official documents from which that language comes. Such is not necessarily the case, of course. And, as Mr. Jones was told, there is no document that exists at the University that links each word, sentence, paragraph or section in the Handbook to some “source” document. In fact, the language in the Handbook regarding these particular subjects was drafted at the request of the Committee by the undersigned, and I used no University documents, but rather the statutes and various opinions of the Attorney General in drafting those sections. [1]
Mr. Van Booven also notes that in a subsequent open records exchange concerning the same documents, Mr. DeBin advised Mr. Jones:
[T]here is no listing, reference guide, or citation list for each and every word, sentence and paragraph in the Faculty Handbook. Although some sections were cited to the official documents, others were not. Dr. Fleming and the other faculty drafters of the Faculty Handbook simply do not have documents or a list of documents used which referenced specific content on each page of the Faculty Handbook. At this juncture, I do not believe it is my obligation to attempt to correlate each and every unreferenced word or sentence in the Handbook to some other document.
Thus, he concludes, the University satisfied the requirements of the Act by asserting “that there was no way to correlate the language in these pages to any `official' University documents since none were used.”
In his letter of appeal, Mr. Jones argues that in his original request he used sufficiently specific language to identify the records he wished to inspect, and that as a requester, he “does not have the responsibility to use clairvoyant powers to divine the internal University name of the sought document, rather, a description can be KRS 61.872 `precise' if it contains sufficient other descriptors.” (Emphasis in original.) It is his position that the University cannot fall back on the argument that it is unable to locate the records identified in his request because there is no “secondary record that individually names the individual responsive.” (Emphasis in original.) He urges this office to issue a decision declaring that “the University has the responsibility to identify responsive records based on the description given by the requester, and that an agency's own descriptory language is itself a sufficient description to locate the record, and that in locating the responsive record the agency must supplement its search tools with direct inquiry to persons familiar with the records and that the agency cannot hide behind a `secondary-record-that-individually-names-the-primary-record' defense.”
The question presented in this open records appeal is whether the University of Kentucky conducted an adequate search for the records identified in Mr. Jones's request based on his description of those records. For the reasons set forth below, and upon the authorities cited, we conclude that although the University improperly asserted that Mr. Jones's request was so nonspecific as to preclude the records custodian from locating the disputed records, its later response that no records exist which satisfy his request was entirely consistent with the Act.
In 94-ORD-108, a decision with which the parties to this appeal are familiar, this office addressed a similar question. There, Mr. Jones identified the records he wished to inspect as follows:
The recently issued faculty handbook states that the policies described therein were drawn from a number of University policy documents, but that only some of those reference documents were identified in the faculty handbook. I request each document that served as a reference for the sections in the handbook on conductance of meetings described on page 29 and that served as a reference for the sections on page 28 of the handbook on access to and proper destruction of records.
(Note: I am aware of and am not seeking the records disposal schedule signed by Lewis Cochran that is maintained in the King Library Archives. However, an example of records I am seeking would be a policy memo sent by the Medical Section administration to Deans, perhaps in the late 1970's, in relation to the policies covered by the agreement signed by Lewis Cochran. An officer in the Medical Section administration described to me the existence of such a memorandum.)
(Emphasis added.) The University responded:
This is a request for a list of reference sources and information used to compose the language of the Faculty Handbook. It is not a request for a specifically identified “record”; accordingly, your request is not covered by the Open Records Act.
At page 18 of 94-ORD-108, this office held that the University erred in characterizing Mr. Jones's request as a “request for a list of references sources,” and that “in light of the preface appearing in the Handbook, the University cannot legitimately claim that the request is too nonspecific.”
Just as it does today, the 1992 Faculty Handbook which gave rise to the earlier appeal contained the following disclaimer:
The language in the Handbook does not supersede, supplement, or alter the language of official University documents such as the Rules of the University Senate, the Governing Regulations, and the Administrative Regulations (GR and AR), the Code of Student Conduct, the University of Kentucky Bulletin or other documents which are described. Specific questions regarding the rights and duties of University employees - including faculty employees - can only be resolved by reference to the appropriate official documents not including this Handbook. For further information concerning the contents and location of these documents, see Appendix.
Based on this language, the Attorney General observed:
At pages 28 and 29 of the Handbook, the University briefly delineates its policies and procedures relative to open records and open meetings. It is clear to us that what Mr. Jones seeks is any documents which were used by the University in the formulation of these policies and procedures. This Office has consistently recognized that the right of access to public records is not absolute. As a precondition to inspection, a requester must identify with “reasonable particularity” those documents which he or she wishes to review. OAG 89-81; OAG 91-58; OAG 92-56; 94-ORD-12. We believe that Mr. Jones identified the records which he wished to inspect with sufficient clarity to enable the agency to locate them and make them available.
Accordingly, we held that to the extent that the University failed to provide Mr. Jones with these documents, it violated the Open Records Act.
In the appeal before us, the University again improperly characterizes Mr. Jones's open records request as an “extremely vague and confusing” request “for references to unreferenced documents.” Just as in 94-ORD-108, it is clear to us that what he actually seeks are documents, not identified in the Handbook, but nevertheless used by the University in the formulation of policies and procedures governing open meetings, open records, and records management, as well as personnel files, performance review, and use of University facilities. Because the University here acknowledges its obligation to document its efforts to locate any responsive records, albeit belatedly, and expressly denies the existence of those records, we believe that this appeal is distinguishable from 94-ORD-108.
At page 19 of 94-ORD-108, this office held that although the University was obligated to disclose documents which it used in preparing the open records and open meetings portion of the Faculty Handbook, “[i]t is, of course, conceivable that no such documents exist.” Continuing, we observed:
A review of the open records and open meetings sections of the Faculty Handbook suggests that little more than the relevant sections of the Kentucky Revised Statutes and the University's own Records Retention Schedule were used in formulating these policies and procedures. Nevertheless, it is our view that if this were the case, the University was obligated to so advise Mr. Jones.
This is the case in the instant appeal. In the second exchange of correspondence relative to these documents, Mr. DeBin stated that although some sections of the Handbook cited to official documents, others did not. He observed:
Dr. Fleming and the other faculty drafters of the Faculty Handbook simply do not have documents or a list of documents used which referenced specific content on each page of the Faculty Handbook.
Mr. DeBin expressed the view that he is not obligated “to attempt to correlate each and every unreferenced word or sentence in the Handbook to some other document.”
In his follow-up letter to the Attorney General, Mr. Van Booven confirmed that the Handbook was written by a faculty committee, including himself, and that the committee “did not necessarily have to be reading from some other `policy' document to be able to draft Handbook language.” He characterized the process of drafting the Handbook as “wordsmithing,” [2] and noted that for his part he relied heavily on the statutes and Attorney General's opinions, and not “unreferenced official documents that may include but not be limited to official administrative policy memoranda.” Mr. Van Booven further acknowledged that the custodian's original response probably “should have been along those lines.”
We therefore conclude that although its original response was deficient, the University ultimately complied with the provisions of the Open Records Act by advising Mr. Jones that there are no records which satisfy his request. We do not, in so holding, intend to signal a retreat from the position adopted in 94-ORD-108. We merely recognize here what we tacitly recognized in our earlier decision: there are no administrative policy memoranda which were used in the drafting of those sections of the Faculty Handbook identified in Mr. Jones's request, and thus there are no records which satisfy his request. For this reason, the University's response was consistent with the Act.
We again remind the parties of the limited scope of the Open Records Act, and this office's role in adjudicating disputes under the Act. As we noted at page 32 of 94-ORD-108:
[The Attorney General] is not empowered to curb agency abuse of the Open Records Law, or the abuse of individuals who exercise their rights under that law, by the imposition of penalties. Our authority is defined by statute.
By the same token, we are not empowered to curb the legitimate exercise of statutory rights granted to requesters by the Act, no matter how aggressively those rights are pursued.
It is abundantly clear that the remedy for noncompliance with the Open Records Act rests in the courts. As we have observed:
KRS 61.882 and KRS 61.991 [3] establish various penalties for noncompliance with the Open Records Law. We assume that a court would look with considerable disfavor on a public agency whose conduct suggested a flagrant disregard for the law, and that it would exercise in full measure the powers vested in it to punish the agency for noncompliance. . . . [I]f evidence exists that the University, or any other public agency, has intentionally subverted the intent of the Open Records Law, that evidence should be brought to the attention of the appropriate authorities who may proceed to a determination of these matters.
94-ORD-108, pp. 33, 34.
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
Attorney General
Amye L. Bensenhaver
Assistant Attorney General
aps/660
Distributed to:
George DeBin
Official Records Custodian
University of Kentucky
11 Administration Building
Lexington KY 40506-0032
Davy Jones
c/o William Jacobs, Attorney
173 N. Limestone Street
Lexington KY 40507
Paul C. Van Booven
Deputy General Counsel
University of Kentucky
2 Administration Building
Lexington KY 40506-0032
[1] With respect to other sections of the Handbook, identified in Mr. Jones's request, Mr. Van Booven comments: [T]he Faculty Handbook was written by faculty for faculty to help them wade through the maze of sometimes complex regulations. He relies on the “disclaimer” that the Handbook is not the official and final document as a mechanism to try to find other documents. What Mr. Jones forgets is that this was a committee wordsmithing and they did not necessarily have to be reading from some other “policy” document to be able to draft Handbook language. Perhaps the Custodian's response should have been along those lines. But, again, the University believes that under the circumstances, and Mr. Jones [sic] complex and argumentative request(s), that its response was proper.
[2] Websters Third New International Dictionary (Unabridged) (1963) defines the term “wordsmith” as “a craftsman or artist whose medium is words,” suggesting a degree of independent analysis, and not a slavish reliance on authority. While it is certainly true that any attempt to articulate governing policies and procedures should be grounded in specific authority, it is also true that the process of translating those policies and procedures for ease of understanding necessarily involves independent interpretation and analysis.
[3] KRS 61.882(3) and (5) provide:(3) In an appeal of an Attorney General's decision, where the appeal is properly filed pursuant to KRS 61.880(5)(a), the court shall determine the matter de novo. In an original action or an appeal of an Attorney General's decision, where the appeal is properly filed pursuant to KRS 61.880(5)(a), the burden of proof shall be on the public agency. The court on its own motion, or on motion of either of the parties, may view the records in controversy in camera before reaching a decision. Any noncompliance with the order of the court may be punished as contempt of court. (Emphasis added.)(5) Any person who prevails against any agency in any action in the courts regarding a violation of KRS 61.870 to 61.884 may, upon a finding that the records were willfully withheld in violation of KRS 61.870 to 61.884, be awarded costs, including reasonable attorney's fees, incurred in connection with the legal action. If such person prevails in part, the court may in its discretion award him costs or an appropriate portion thereof. In addition, it shall be within the discretion of the court to award the person an amount not to exceed twenty-five dollars ($25) for each day that he was denied the right to inspect or copy said public record. Attorney's fees, costs, and awards under this subsection shall be paid by the agency that the court determines is responsible for the violation. KRS 61.991(2)(a) and (b) provide:(a) Any official of a public agency who willfully conceals or destroys any record with the intent to violate KRS 61.870 to 61.884 shall be guilty of a Class A misdemeanor for each separate violation.(b) Any official of a public agency who fails to produce any record after entry of final judgment directing that such records shall be produced shall be guilty of contempt.