NOT TO BE PUBLISHED
97-ORD-31
February 27, 1997
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 handling of a series of open records requests submitted by Professor Davy Jones. In an undated memorandum addressed to Jan Schach and Gretchen LaGodna, present and past chairpersons of the University Senate Council, Mr. Jones asked that the past chairperson “provide for inspection, to the appropriate person in the UK Legal Office with which Paul Van Booven is associated, University records of regulation/Rules on the functions of faculty bodies/committees, that were in her possession during her term . . . (including her annotations on, or items she appended to, those pages).” Mr. Jones requested that the current chairperson produce the same records “to that same appropriate person.” In addition, he asked that they produce:
a) Senate Council affirmations at meetings/retreats of the faculty's governance functions[;]
b) if the President delegated his Senate Presiding offership (GRIV), that record[;]
c) Richard Belding's 1993 memo for faculty committee records creation requirements[;]
d) the President's Office's 2/1/96 memo copied to chancellors calling these rules of law “mindless” and authorizing faculty committees not to create records.
Although his request appeared in the body of an open meetings complaint, as part of the two part proposed remedy for the alleged open meetings violation, Mr. Jones emphasized that his request was made “pursuant to KRS 61.872(1). . . .” On behalf of the University, George J. DeBin, official records custodian, responded that “the purpose of the Open Records Act is not to direct me or insist that I provide certain documents to other University Units, but rather to make them available to you. . . .”
Dissatisfied with this response, Mr. Jones again requested these records in a memorandum addressed to Paul Van Booven, deputy general counsel for the University. According to Mr. Jones, he “did not receive any response of any kind on the matter of denial of [his] access to those records which had been delivered for [his] inspection by the two Chairpersons.”
On December 3, 1996, Mr. Jones submitted a third request for these records to the president of the University, “asking his assistance to rectify the improper responses that [he] had been receiving. . . .” In the same letter, he requested for the first time copies of records “showing all of the following: the presiding officer of the Senate's `standing' committees, the Senate's `special' committees, the Senate's `advisory' committees and the `Senate' itself. . . .” Mr. DeBin responded to Mr. Jones's new open records request by advising him that on May 9, 1996, the University furnished him with copies of lists of all Senate committees and administrative committees for the 1995-96 academic year, and that these lists identified the chairperson of each committee. Mr. DeBin offered to provide Mr. Jones with a second copy of these records upon request. In response to Mr. Jones's request for a record documenting the president's delegation of his role as chairperson of the Senate, Mr. DeBin observed:
Other than Senate Rule 1.2.4.1 and Governing Regulation IV-3 (both of which state that the President is the Chair of the Senate and shall be the presiding officer, except as he or she may delegate this function) there is no record which explicitly states that the Senate Council Chair presides over actual meetings of the Senate, but as you are undoubtedly aware, the Senate Council Chair has historically served in this roll.
Mr. Jones challenges the University's conduct on several grounds.
With respect to the University's failure to produce a record documenting the delegation of the President's role as chairperson of the Senate, Mr. Jones argues that “the University has VIOLATED the Open Records law by OMITTING from its `complete in and of itself' original KRS 61.880(1)-response to [him] an EXPLANATION that contains CLEAR AND CONVINCING EVIDENCE to support its invokation [sic] of KRS 61.872(4)-noncustody of the by-points-of-law-presumed-to-exist record that [he] described.” [1]
(Emphasis in original.) It is his position that the University must show by clear and convincing evidence that it has conducted an adequate search for this record, [2] including a showing that the University “search[ed] to the president,” as well as other persons or files, and a description of the search method it used. In addition, Mr. Jones maintains, the University must demonstrate that those methods were “reasonably adequate,” and provide a description of “the structure of the agency filing system as to where filing of the original or copies of the `delegation' would be anticipated, as reasonable locations to search to.”
Mr. Jones also objects to the University's failure to provide him with copies of “the documents provided by the two presiding officers of the Senate Council, and the missing documents that show the presiding officers of the Senate's `special' ad hoc committees.” [3] Noting that Jan Schach, Chair of the Senate Council, confirmed the existence of at least some of these records, which she forwarded to Mr. DeBin, Mr. Jones complains that the University ignored these requests. Finally, Mr. Jones decries the University's “[s]ubversive misuse of KRS 61.880(2), to evade an explicit decision on its insufficient explanation under KRS 61.880(1), by belatedly providing the information weeks legally overdue in the guise of KRS 61.880(2).” (Emphasis in original.)
In its supplemental response to Mr. Jones's open records appeal, the University elaborates on its original position relative to his requests. With respect to the issue of its failure to produce a document reflecting the president's delegation of his role as Senate council chair, Mr. DeBin explains:
The second paragraph of my December 9, 1996 letter to Dr. Jones addressed Dr. Jones' request regarding the presiding officer of the Senate. After checking with both the University Senate Office and the President's Office, it was determined by my staff that no one could recall that any University President, who under our regulations also serves as the Chair of the Senate and is the Senate's “presiding officer,” had ever delegated in writing this function to any other person. Thus, I responded that there were no records documenting any such delegation. I did, however, inform Dr. Jones of a fact that is common knowledge in our University community: that the Senate Council Chair “presides” at the actual monthly meetings of that University Senate. I also explained in my letter to Dr. Jones that the role of the Senate Council Chair in this regard was an historical one. There simply is no record that I have been able to locate in the Senate Office or the President's Office regarding the President's delegation of the actual “presiding officer” responsibilities. Dr. Jones seems to be arguing that because the Senate Council Chair “presides” at actual meetings that there must necessarily have been some “official” delegation of the “presiding officer” function.
Mr. DeBin suggests that on issues relating to Open Meetings, Mr. Jones should direct his correspondence to the President “[i]nasmuch as there is no official delegation of the President's presiding officer role for Open Meetings purposes. . . .”
The University also refutes Mr. Jones's complaint that it failed to make available to him records that he asked be forwarded to the Office of Legal Counsel as part of an Open Meetings Act proposed remedy. Mr. DeBin indicates that the University “never considered Dr. Jones's request that certain records be delivered to the University's legal office to be a proper Open Records request. . . .” He notes that Mr. Jones never asked to inspect the records himself, but instead requested that the records be delivered to the University's lawyers. He again asserts that “the Open Records Act is designed to give a citizen the opportunity to inspect and copy records for himself and is not intended as a vehicle to be used to direct that a public agency gather records from itself and deliver it [sic] to any third person, much less its own in-house counsel.” (Emphasis in original.) Mr. DeBin did, however, offer to provide Mr. Jones access to the records upon request, “something he has yet to do.” [4]
We are asked to determine if the University of Kentucky violated provisions of KRS 61.870 to 61.884 in its handling of Mr. Jones's various requests. For the reasons set forth below, and upon the authorities cited, we find that although its original responses were deficient, those deficiencies were corrected in its supplemental response. We therefore conclude that the University did not violate the Open Records Act.
ADEQUACY OF UNIVERSITY'S SEARCH
In 95-ORD-96, this office articulated a standard by which to judge the adequacy of an agency's search for public records. At page 7 of that decision we observed:
It is . . . incumbent on an agency “to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested.” Cerveny [v Central Intelligency Agency, 445 F.Supp. 772,] 775 [(D.Col. 1978)]. Thus, the agency must expend reasonable efforts to identify and locate the requested records. And, if the documents do exist, and the public agency cannot locate them, the agency's “good faith [sh]ould not be impugned unless there was some reason to believe that the supposed documents could be located without an unreasonably burdensome search.” Goland v Central Intelligency Agency, 607 F.2d 339, 353 (D.C. Cir. 1979). In assessing the adequacy of an agency search, we “need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith.” Weissman v Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).
We concluded that the public agency had “satisfied its statutory burden of proof by documenting what efforts were made to locate the records sought . . . , and that its search for the record [was] adequate under the standard articulated. . . .” 95-ORD-96, p. 8.
It is by this standard, and not a clear and convincing standard, that the Attorney General judges the adequacy of an agency's search for records. We have never espoused the view that an agency must describe a “search to” the author or the recipient of the record, the names of other “persons and files searched to,” the “search method” employed, “why the search methods were reasonable adequate,” and “the structure of the agency's filing system. . . .” Rather, we have expressly adopted the view that an agency satisfies its burden of proof by documenting its good faith to identify and locate the requested records using methods which could reasonably be expected to produce the records. We do not expect public agencies “to embark on . . . unproductive fishing expeditions `when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight.” In re Agent Orange Products Liability Litigation, 98 F.R.D. 522, 529 (E.D. N.Y. 1983) cited in 95-ORD-96, at page 7.
Mr. Jones's argument that the law requires clear and convincing evidence of a search for a “presumed to exist” record is based on two fallacies. The first of these relates to his interpretation of KRS 61.872. Mr. Jones argues:
I invoke here the word “section” in KRS 61.872(6), where “section” means the entire KRS 61.872, and not just the subsection KRS 61.872(6). It is a rule of construction that when a word is multiply-used in a statute, each use is inferred to have the same meaning. Note how “subsection” in KRS 61.8745 means the parenthetical “subsections (2) to (6) of KRS 61.874.” Thus, the standard of clear and convincing evidence given in KRS 61.872(6) refers to any denial based on a provision of section KRS 61.872, and a denial purporting noncustody of a record is a denial under KRS 61.872(4) that needs clear and convincing evidence. Denials under KRS 61.878(1) carry only a “burden of proof.”
Neither this office nor the courts have ever adopted this view. Rather, it has long been the Attorney General's position that the clear and convincing standard of proof is only applicable to denials based on KRS 61.872(6). [5] Thus, an agency which seeks to deny access to public records on the grounds that the request is unreasonably burdensome, or is intended to disrupt other essential functions, must sustain its refusal “by clear and convincing evidence.” We believe that the relevant rule of statutory construction is articulated in Central State Hospital v Gray, Ky., 880 S.W.2d 557, 558 (1994). Echoing a long line of opinions, the court held that “[i]n construing statutory provisions, it is presumed that the legislature did not intend an absurd result.” In our view, it cannot reasonably be argued that implicit in subsections (1), (2), (3), (4), and (5) of KRS 61.872 is a clear and convincing standard of proof. How, for example, can an agency make public records open for inspection and provide suitable facilities for the exercise of this right “by clear and convincing evidence”? KRS 61.872(1). How does a public agency which does not have custody of the record requested notify the requester and furnish the name and location of the official custodian of the agency's public records “by clear and convincing evidence”? KRS 61.872(4). Such a construction of KRS 61.872 leads to just such an absurd result.
Equally erroneous is Mr. Jones's argument that there is a “legislative presumption of agency records preparation” in the Open Records Act. Mr. Jones argues:
Kentucky courts have directed that the preambles to the Open Records and Open Meetings laws are dispositive in adducing legislative intents, where the prospective legislative presumption contained in the Open Records preamble is: records will arise for public “access” containing “information . . . on the conduct of the public's business.” The legislature twice gives notice on what it includes in “the public's business,” where it enacted the phrase “essential functions of the agency” (KRS 61.872(6)), KRS 61.876(1)). The legislature then with clarity notices to all parties its presumption that “documentation[s] . . . are prepared . . . [and] retained” by public agencies (KRS 61.870(2)). In construing legislative presumptive intent, rules of construction compel us to read purposeful meaning into the present tense of “are,” and that “documentation” envisions “evidence” or “substantiation” (Webster's Dictionary) of each agency's preambled “conduct.”
Contrary to Mr. Jones's belief, the legislative presumption of records preparation is found in Chapter 171 of the Kentucky Revised Statutes, relating to state archives and records, and in particular KRS 171.640, which requires “[t]he head of each state or local agency [to] cause to be made and preserved records containing adequate and proper documentation of the organizational functions, policies, decisions, procedures, and essential transactions of the agency. . . .”
The cited provisions of the Open Records Act are inapposite. 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. [Emphasis added.]
KRS 61.876(1) provides:
(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection. . . .
(Emphasis added.) In both provisions, the General Assembly attempts to insure that agency business will not be disrupted by extreme and unreasonable open records demands. Neither provision is directed at preparation of records reflecting the agency's essential functions. This would appear to be yet another invitation to this office to render a decision on the issue of records creation. We have expressly declined this invitation on more than one occasion, and will continue to do so. See, e.g., 95-ORD-48, p. 4. (holding that “the Attorney General is not empowered to order an agency to create records, or to declare its failure to do so a subversion of the intent of the Open Records Act.”
Public agencies are not required to sustain their denials based on the nonexistence of records by clear and convincing evidence “where the act presumes that the sought record was `prepared' and is `maintained' by the agency . . . ,” because records are not “presumed-to-exist” by virtue of the Open Records Act. (Emphasis in original.) As noted, what we have required of agencies, and will continue to require of agencies, if they base their denials on the nonexistence of the records sought, is that they document what efforts were made to locate the record. If, on appeal, this office finds that the agencies made a good faith effort to conduct a search using methods which could reasonably be expected to produce the records requested, we will conclude that the agencies adequately searched for the record under the standard articulated in 95-ORD-96.
Although its initial response to Mr. Jones was deficient in failing to describe the efforts made to locate the president's formal delegation of authority relative to the Senate Council, the University of Kentucky corrected this deficiency in its supplemental response. [6] Mr. DeBin described the University's efforts to locate such a document in the Senate office and the President's office, and its ultimate conclusion that no University president had ever delegated in writing the chairmanship of the Senate to another person. On this basis, the University concluded that no record exists which satisfied that portion of Mr. Jones's request. Because we believe that the search method used by the University, although unsuccessful, could reasonably have been expected to produce the record requested, and that it expended reasonable efforts to locate the record, we conclude that the University of Kentucky's search was adequate under the standard articulated in 95-ORD-96.
UNIVERSITY'S FAILURE TO HONOR OPEN RECORDS REQUEST/OPEN MEETINGS REMEDY
Mr. Jones next appeals the University's failure to honor his request for records that he asked be forwarded to the Office of Legal Counsel as part of an Open Meetings Act proposed remedy. The University initially responded that the purpose of the Open Records Act was not to require it to provide documents to other University units, but to make documents available to an applicant upon receipt of a proper open records request. Mr. DeBin reiterated this view in his February 12 supplemental response, noting that the University never considered Mr. Jones's request that certain records be sent to the University's legal office to be a proper request. In his response, Mr. DeBin agreed to make the records which were sent to his office at Mr. Jones's request available to him upon presentation of an open records request. We do not believe that the University's actions violated the provisions of the Open Records Act.
KRS 61.872 speaks generally to the mandate of the Open Records Act. That statute provides, in relevant part:
(1) All public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right. No person shall remove original copies of public records from the offices of any public agency without the written permission of the official custodian of the record.
(2) Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
At the risk of over-simplification, we, too, believe that the statute is intended to insure an applicant's access to nonexempt public records upon presentation of a proper open records request. Although the statute does not describe with specificity what constitutes a proper request, KRS 61.872(2) states that the official custodian of records “may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected.” The statute does not envision an “Open Records request . . . coincident with steps in a remedy . . . propos[ed] in an Open Meetings action.”
Mr. Jones describes his request as follows:
By my design, the arrival of records for my inspection at the room of the Legal Office that is also the same room as the Open Records office, those records would coincidentally also then be near to Paul van Booven for his use in assisting toward the University position to my Open Meeting action. So, I sent my coincident Open Records requests/Open Meetings remedy to the past and present presiding officers of the Senate Council (since the requested records were in their personal custody or control, and due to their Senate Council posts with respect to the Open Meetings action about Senate committees). I asked them to please forward the records materials on to an “appropriate person” at the Legal Office location that is the physical location of both the Open Records office and Paul van Booven, for my inspection, and for his use in assisting the Senate Council on the Open Meetings action. [7]
This is not a written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. [8] Mr. Jones's vague reference to KRS 61.872(1), and subsequent “clarifications,” were poor substitutes for a simple and direct open records request.
Understandably confused, the University did not treat Mr. Jones's “open records request coincident with a proposed open meetings remedy” as a proper request. It has, however, agreed to furnish Mr. Jones with these records if he asks for them. We urge Mr. Jones to submit a request to the official custodian if he still wishes to inspect the records, and to conform his request to KRS 61.872(2) by describing the records to be inspected “with sufficient clarity to enable the public agency to locate and make them available.” OAG 89-8, p. 2.
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 toKRS 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
103
Distributed to:
Davy Jones
c/o William Jacobs
173 N. Limestone St.
Lexington KY 40507
George J. DeBin
Official Records Custodian
11 Administration Building
University of Kentucky
Lexington KY 40506-0032
[1] Mr. Jones argues that the clear and convincing standard of proof found at KRS 61.872(6), and applicable to denials based on an unreasonable burden to the agency, is applicable to any denial based on KRS 61.872, including a KRS 61.872(4) denial based on the non-custody of the record.
[2] The record is “presumed-to-exist,” in Mr. Jones's view, because it documents an “essential function of the agency” per KRS 61.872(6) and KRS 61.876(1).
[3] Upon receipt of the University's supplemental response to his appeal, in which the University asserted that it provided him with these records on May 9, 1996, Mr. Jones withdrew that portion of his appeal dealing with ad hoc committees.
[4] Lest he think that this office did not consider his February 15 reply to the University's February 12 supplemental response, we assure Mr. Jones that we did factor into our analysis each of his comments relative to uncontested admissions by the University, the University's attempt to “supplant rather than supplement its original response,” and the University's attempt to “manipulate” this office by “invit[ing us] to pretend that [Mr. Jones] never stated that [he] be provided the records pursuant to the Open Records law.”
[5] See 95-ORD-61 (holding that “there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [found at KRS 61.872(6)]”).
[6] In support of his argument that this office should not consider the University's supplemental response, Mr. Jones cites a footnote appearing in 96-ORD-193 in which we held that “[t]he Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself, and [we] will only consider those supplemental responses which correct misstatements of misunderstandings which appear in, or arise from the complainant's letter of appeal, or which offer additional support for the agency's original denial.” (Emphasis added.) We believe that the University's supplemental response falls within the latter category insofar as it consists of supporting information directly pertinent to its original denial.
[7] The precise wording of his request follows:I request pursuant to KRS 61.872(1) that the former chair of the Senate council provide for inspection, to the appropriate person in the UK Legal Office with which Paul van Booven is associated, University records of regulations/Rules on the functions of faculty bodies/committees, that were in her possession during her term when my open meetings inquiries initiated (including her annotations on, or items she appended to, those pages). My provided quotations will enable her to attest that she is forwarding the responsive pages. I similarly request that the present chair provide to that same appropriate person, the corresponding University pages of regulations/Rules that are those currently used in her office. Please also provide a Senate Council affirmations at meetings/retreats of the faculty's governance functions, b) if the President delegated his Senate Presiding officership (GR IV), that record, c) Richard Belding's 1993 memo for faculty committee records creation requirements, d) the President's Office's 2/1/96 memo copied to Chancellors calling these rules of law “mindless” and authorizing faculty committees not to create records.
[8] In his second “request,” Mr. Jones asked that the University, “provide MY KRS 61.874- inspection of the records at the Open Records office.” In his third “request,” he asked, “that I be provided certain Senate-related records pursuant to the Open Records law . . . where the requested records arrived for ME at that office pursuant to my open records request.”