Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This appeal originated in the submission of a request for public records by Mr. James W. Hendrix, professor of plant pathology at the University of Kentucky, to the University's custodian of records, Mr. Donald B. Clapp, 1 on March 1, 1994. Mr. Hendrix's requests and Mr. Clapp's responses are summarized below:
1. The Distribution of Effort forms for the current year for each of the following faculty:
A. The College of Agriculture faculty who are currently members of the University Senate, and
B. Current members of the Privilege and Tenure Committee.
RESPONSE: Please be advised that we are in the process of retrieving the requested forms. As you are aware, we will redact social security numbers pursuant to KRS 61.878(1)(a), since the release of that information would be an unwarranted invasion of personal privacy. We will notify you as soon as we have copies ready for you, which should be no more than five working days from the date of this letter.
2. Any statement of policy by any university unit, including the College of Agriculture, which permits public service, personal professional development, and university, college, and department committee activities to be reported on the Distribution of Effort form under the category of research.
RESPONSE: To the best of our knowledge, no such record exists at the College of Agriculture that is responsive to your request. You have requested "any statement of policy by any university unit." Please be advised that the Open Records Law is not a mechanism designed for you to issue interrogatories to a public agency. If you desire records not dealt with in this response, please identify which specific record that you are seeking we will be glad to look for it [sic]. A request for "a copy of any statement of policy by any university unit" is overly broad for Open Records purposes.
. . . .
5. Documents by the University or any university unit which states [sic] guidelines and policies for the amount of time faculty should devote to[:]
A. Personal professional development, and
B. Public service.
RESPONSE: Please refer to the University's Governing and Administrative Regulations which are available for your inspection in the M. I. King Library, or you may; [sic] view on the University's computer system. You may particularly want to refer to AR II 1.0-5 and Appendix II to AR II 1.0-1.
Mr. Hendrix does not dispute Mr. Clapp's responses to requests three, four, six, and seven.
We are asked to determine if the University of Kentucky violated the Open Records Act in responding to Mr. Hendrix's request. For the reasons set forth below, and upon the authorities cited, we conclude that the University violated the Act by failing to afford Mr. Hendrix timely access to the requested records, by demanding that Mr. Hendrix identify the records sought with a degree of precision which the Act does not require, and by offering no explanation for the omission of certain records.
1. Timely Access to Public Records
In 93-ORD-134, a copy of which is attached hereto and incorporated by reference, this office engaged in a lengthy analysis of the concept of timely access to public records. At page 12 of that decision, we concluded:
[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.
To the extent that the University failed to provide Mr. Hendrix with timely access to the records identified in his request, timely access being defined as "any time less than three days from agency receipt of the request," OAG 84-300, p. 3, or in the alternative, with a detailed explanation of the cause of any delay beyond three days, as well as a statement indicating the earliest possible date on which the records would be available for inspection, it violated the Open Records Act. KRS 61.872 (5). We encourage the parties to review 93-ORD-134, and the authorities cited therein, particularly those cited on page 12, with the goal of avoiding future disputes.
2. Identification of Records by Requester
In 94-ORD-12, a copy of which is attached hereto and incorporated by reference, the Attorney General articulated a standard for determining whether a requester had described the records sought with sufficient precision. At page 3 of that decision, we observed:
The purpose and intent of the Open Records Act is to permit the "free and open examination of public records. " KRS 61.871. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he or she wishes to review. OAG 89-81; OAG 91-58; OAG 92-56. Thus, if a public agency is to provide access to public documents, the requester must identify them with sufficient clarity to enable the agency to locate and make them available. If the requester cannot describe the documents he wishes to inspect with sufficient specificity, there is no requirement that the public agency conduct a search for such documents.
Like the language of the request in 94-ORD-12, Mr. Hendrix's request is not a model of clarity. Nevertheless, we do not believe that it is so ambiguous that it precludes the custodian from determining the identity of the records sought. Given the subject matter of the other requests in Mr. Hendrix's March 1 memorandum to Mr. Clapp, we believe that the custodian could have recognized it as a request for written policies adopted by university units relative to assignment of faculty duties under the monitored workload or distribution of effort system.
It was not sufficient, in our view, to assert that the Open Records Law is not a "mechanism designed . . . to issue interrogatories to a public agency, " or to suggest that the request, in this instance, was "overly broad. " Mr. Hendrix requested a particular document, the written record of policies adopted by each university unit, on a particular subject, the assignment of duties under the monitored workload system. It is the opinion of the Attorney General that he identified the records sought with sufficient clarity, and that the University demanded a degree of precision in records identification which the Open Records Act does not require.
3. Failure to Account for Omission of Certain Records
A page 4 of OAG 90-26, a copy of which is attached hereto and incorporated by reference, this office opined:
If a record of which inspection is sought does not exist, the agency should specifically so indicate.
See also, OAG 91-109. With respect to the last disputed issue in this appeal, we find that the University erred in failing to account for the omission of "documents by . . . any university unit which states [sic] guidelines and policies for the amount of time faculty should devote to . . . personal professional development and . . . public service. " Although Mr. Clapp notified Mr. Hendrix that documents prepared by the University on these subjects could be found in the University of Kentucky's Governing and Administrative Regulations, he offered no explanation for the remaining documents. The University is obligated to retrieve those records if they exist, and if they do not exist, to so state.
The University of Kentucky may challenge this decision by initiating action in the appropriate circuit court. 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 proceedings.
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