NOT TO BE PUBLISHED
97-ORD-133
August 27, 1997
In re: Theresa A. Hahn/University of Louisville
Open Records Decision
This is an appeal from the University of Louisville’s response to an open records request submitted by University employee Theresa Hahn. The questions presented in this appeal are both procedural and substantive in nature. The parties devote considerable time and effort to describing the sequence of events which occurred between April 8, 1997, when Ms. Hahn made her open records request, and May 30, 1997, when she received the last of the nonexempt documents she requested. We will consider the propriety of the University’s actions which resulted in this delay, and then proceed to an analysis of the substantive legal issue: Whether the University of Louisville properly relied on KRS 61.878(1)(j) in denying Ms. Hahn access to eleven documents which the University of Louisville concedes "pertain to [Ms. Hahn]." For the reasons which follow, we find that the University’s response was both procedurally and substantively deficient.
As noted, on April 8, 1997, Ms. Hahn submitted an open records request to Mr. William J. Morison, director of the University’s Archives and Records Center and official custodian of records. She requested access to and copies of "all records" in the custody of certain named University departments that pertained to her. Over a period of time extending from April 10, when Mr. Morison first responded, to May 30, when the last of the requested documents were released to Ms. Hahn, the parties exchanged numerous letters and e-mails, in addition to communicating by telephone. In his initial response, Mr. Morison stated that he had asked the appropriate departments to identify the relevant records, and that he would "respond further" when he heard from the departments. He asked that she give him "a few days," but encouraged her to contact him if she hadn’t heard from him "in a reasonable time."
In the succeeding weeks, records were retrieved from various departments. On May 1, Mr. Morison notified Ms. Hahn that she could review her personnel file at the office of University Personnel Services. On May 15, she was permitted to inspect "the remainder of the records [Mr. Morison] had identified." Although certain documents were withheld, Ms. Hahn did not receive a written explanation, with citation to specific exceptions authorizing nondisclosure, until May 21. In addition, Ms. Hahn was not given copies of records she had "tagged for copying" at the time of inspection, but was forced to wait an additional day and one half while they were reproduced. Ms. Hahn argues that the University’s failure to provide timely access to the documents she requested, to immediately furnish her with copies of the documents upon request, and to provide a timely statement of the specific exceptions authorizing nondisclosure of certain requested records constitutes a violation of the Open Records Act. In addition, she questions the University’s reliance on KRS 61.878(1)(j) to authorize nondisclosure of these records in view of the fact that she is a University employee and therefore enjoys a greater right of access to records relating to her pursuant to KRS 61.878(3).
On behalf of the University, Mr. Morison responded:
I believe the University did provide timely access to the documents requested by Ms. Hahn. I informed her of the times when she could inspect records as soon as I possibly could have done so, in the light of the burdensome volume of the records requested and their distribution among so many locations. In the intervening period, my office was in constant communication with Ms. Hahn. . . . I let her inspect the records before I could carve out the time to write the official letter [explaining the University’s partial denial of her request]. This was to allow her to inspect them as soon as humanly possible. Had I waited (my official response is dated 5/21), her inspection would have been delayed nearly a week.
Reiterating that he "had no way of predicting ‘the earliest date, time, and place for inspection’" before all of the records had been retrieved and reviewed, Mr. Morison argued that Ms. Hahn’s request "placed a heavy burden on the university . . . [and was] handled . . . in as timely a manner as was possible under the circumstances." Mr. Morison did not elaborate on the University’s partial denial of Ms. Hahn’s request.
The Attorney General has consistently recognized that "the procedural requirements of the Open Records Act are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5; 93-ORD-134, p. 9. In the latter decision, we observed:
KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted.
Nothing in the statute permits an agency to postpone or delay this statutory deadline while the agency "[begins] the process of identifying and compiling the [requested] records." The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to provide the requester with timely access to the requested records.
93-ORD-134, p. 9, 10 (copy enclosed). KRS 61.872(5) imposes an additional duty on public agencies which must delay access to public records because the records are not immediately available. That statute requires the agency to provide "a detailed explanation of the cause . . . for further delay and the place, time and earliest date on which the public record will be available for inspection."
We conclude that the University of Louisville failed to provide timely access to the records identified in Ms. Hahn’s request. That request was submitted on April 8, 1997. Copies of all documents satisfying her request, with the exception of those for which the University claimed statutory exclusion, were not released to her until May 30. Hence, some fifty-two days elapsed between the date of her initial request and the date of the University’s last reported communication. Although numerous letters, e-mails, and telephone calls were exchanged, the University never adequately explained the cause of the delay or offered even its best guess as to when the records would be available for inspection. Its original estimate of "a few days" fell far short of the actual number of days that elapsed before the records were produced.
In 93-ORD-134, the Attorney General opined:
"Timely access" to public records has been defined as "any time less than three days from agency receipt of the request." OAG 84-300, at p. 3. In OAG 83-23, at page 4, we expressly held that an agency had not acted in accordance with KRS 61.870 to 61.884 "in its failure to allow inspection or make a proper response to [a] request to inspect records after three months from the date of [the] initial request." See also, OAG 91-200; OAG 92-35.
94-ORD-134, p. 11. The Open Records Act does not prescribe a reasonable time within which access must be afforded to public records. As noted, KRS 61.872(5) normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request. OAG 84-300. When, however, a request is made for voluminous records which are widely dispersed, such time limitations are virtually impossible to meet. Although the University did not invoke KRS 61.872(6) as a basis for denying access to the requested records, it is apparent that the task of gathering the documents might necessitate a reasonable extension of the three day period of limitation. In our view, however, the lengthy period of time which elapsed between Ms. Hahn’s request and the last reported release of records by the University represents an inordinate delay.
This delay resulted not only from the difficulty of retrieving and reviewing voluminous records, but also from Mr. Morison’s concern that he be present while Ms. Hahn reviewed the records and his apparent inability to furnish copies of records at the time of inspection. While it is certainly true that the University is authorized to "protect public records from damage and disorganization, . . . prevent excessive disruption of its essential functions, . . . [and] provide assistance and information upon request," it may not do so at the expense of timely access. KRS 61.876(1). As we noted at page 2 of 93-ORD-48 (copy enclosed):
While this provision does not expressly permit a public agency to appoint an employee to oversee the review of its records, we believe that such a policy is consistent with the agency’s grant of authority to protect its records and prevent excessive disruption of its essential functions. Nevertheless, we do not believe that the policy can be used to limit the number of hours during the regular work day when a requester may inspect records.
Nor do we believe that the agency can impede access by refusing to provide copies of records at the time of inspection. Subject to the rule that the custodian must "ensure that . . . duplication will not damage or alter the original records," the requester is entitled to obtain copies of records at the time of inspection even if this means duplicating them himself. KRS 61.874(1).
In sum:
We believe that a determination of what is a "reasonable time" for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records. Public agencies must work, in a spirit of cooperation, with individuals who request to inspect their records to insure that those individuals are afforded timely access to the records they wish to inspect.
93-ORD-134, p. 12. The University of Louisville should be guided by these observations in future open records exchanges.
Turning now to the substantive issue in this appeal, we find that the University improperly relied on KRS 61.878(1)(j) in denying Ms. Hahn access to the eleven or twelve documents which it claimed were exempt. Those records are described in Mr. Morison’s May 21 letter of partial denial as "preliminary memoranda expressing opinions." He explains:
None constitute any final action. None was a part of [Ms. Hahn’s] personnel file. One principally concerns employees other than [Ms. Hahn]. Two offer suggestions on the creation of a job description. Two concern the possibility of arranging a meeting to discuss a personnel matter. Two concern interpretation of conversations and memoranda. Four are between university employees and a university attorney and are confidential communications exempt under attorney/client privilege.
Mr. Morison does not dispute that all of these records relate to Ms. Hahn. Presumably, they would not be in issue if they did not since she requested only records which relate to her.
KRS 61.878(1))(j), which excludes from public inspection "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended," is overridden by KRS 61.878(3). The latter statute provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
In analyzing this provision, the Attorney General has recognized:
KRS 61.878(3) overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) through (j), with the exception of those noted in the concluding sentence of the provision, when an open records request is submitted by a public agency employee. The final sentence of the provision authorizes an agency to withhold examinations and "documents relating to ongoing criminal or administrative investigations by [the] agency" even when they are requested by the public agency employee and relate to him. Thus, as a rule of general application, KRS 61.878(3) mandates release of otherwise exempt records to a public agency employee. However, where the employee is under investigation and the documents relate to that investigation, the request can properly be denied. See, e.g., 93-ORD-37; 93-ORD-74.
In contrast, this office has recognized that a public agency employee is entitled to review records relating to administrative actions which he or she initiated. Thus, in 93-ORD-19, we held that a public agency employee could inspect handwritten notes generated by the agency’s affirmative action officer in the course of investigating a formal complaint filed by the employee, even though those notes were otherwise exempt per KRS 61.878(1)(i). We reaffirmed that decision in 93-ORD-24, holding that the agency improperly withheld handwritten notes prepared by an agency officer during an investigation of a complaint initiated by the requester to whom the notes related.
Consistent with the general rule of statutory construction codified at KRS 446.080(4), which provides that "[a]ll words and phrases shall be construed according to the common and approved usage of language, and the specific rule of strict construction of the exceptions to the Open Records Act, codified at KRS 61.871, we believe that the personnel actions which . . . [an employee] initiated cannot properly be characterized as "ongoing criminal or administrative investigations by an agency" within the meaning of KRS 61.878(3). (Emphasis added.) The term "investigation" is defined as "a careful search or examination; systematic inquiry." Webster’s New World Dictionary 741 (1974). "Adjudication," on the other hand, is defined as "the act of hearing and deciding (a case . . . dispute or problem)." Id., 17. These terms are by no means synonymous. Had it intended KRS 61.878(3) to apply to both the investigative and adjudicative phases of an administrative action, the legislature could have employed both terms. We assume that the legislature purposely employed the single term.
Moreover, KRS 61.878(3) limits public employee access to records relating to the employee only if the investigation is initiated "by an agency." (Emphasis added.) Again, if it were the legislature’s intent that the prohibition extend to investigations initiated "against" an agency, it could have so provided by inclusion of the words "by or against." We attach significance to the legislature’s particular word choice, and conclude that the limiting language of KRS 61.878(3) prohibits public employee access to their own records only when the criminal or administrative investigation (as opposed to adjudication) is undertaken by (as opposed to against) the agency. Compare KRS 61.878(1)(h) (authorizing nondisclosure of "[r]ecords of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure would harm by the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication.")
95-ORD-97, p. 4, 5 (copy enclosed).
Ms. Hahn is a research technologist employed in the University’s Department of Psychiatry. By the University’s own admission, the disputed records relate to her. There can be little doubt that those records fall squarely within the parameters of KRS 61.878(3), the "exception to the exceptions." Although it appears that there may be administrative action in the background of this appeal, the University does not argue that KRS 61.878(3) does not apply for this reason. Consistent with the principles set forth in 95-ORD-97, Ms. Hahn is entitled to review these records, notwithstanding the fact that they are preliminary, since they relate to her.
With respect to its argument that four of the documents are protected by the attorney-client privilege, we find that the University not only failed to cite the relevant exception per KRS 61.880(1), but failed to meet its statutory burden of proof relative to invocation of the privilege. KRS 61.880(2)(c). The University should immediately arrange for Ms. Hahn to inspect all of these records and provide copies of the records upon request.
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
#789
Distributed to:
Theresa A. Hahn
2068 Sherwood Avenue, #4
Louisville KY 40205-1148
Mr. William J. Morison
Archives and Records
Ekstrom Library
University of Louisville
Louisville KY 40292-0001