Opinion
Opinion By: Albert B. Chandler III,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State University violated the Open Records Act in its disposition of State Journal reporter Beth Crace's January 24 and 25, 2001, records requests. For the reasons that follow, we find that KSU's responses were procedurally and substantively deficient, and therefore violative of the Act.
On January 24, Ms. Crace requested copies of "payments, contracts, correspondence, memos, notes or emails for vehicle purchases for the land grant program from July 1998 until present [including] a copy of the federal grant application and vehicle specifications for those land grant vehicles." Specifically, she requested:
. Any requisitions and documents showing the assignment or reassignment of vehicles purchased and used for the land grant program to any other Kentucky State University employee from July 1998 until present;
. Records, including documents from the motorpool, showing the dates, purpose of trip and persons using, and destination of, land grant vehicles from July 1998 until present;
. Records indicating what university vehicles are used by and leased for President George Reid or members of his family from July, 1998 until present, and the mileage on those vehicles;
. Motorpool documents showing the dates of use, purpose of trip, persons using, and destination of those vehicles from July 1998 until present.
In the same letter, Ms. Crace requested a copy of "a signed contract, any and all payments, contracts, requisitions, correspondence or emails between Kentucky State University and Cocoa-Cola Inc. for vendor services, and any and all bid documents, bidder submissions related to the award of the contract to Cocoa-Cola Inc., [and] all payments Kentucky State University has received from the Cocoa-Cola Foundation or correspondence related to future payments from December 1999 until present."
One day later Ms. Crace submitted a second open records request to KSU in which she asked for copies of "all personnel contracts, employment agreements, PFA forms, resumes, employment applications, correspondence, memos, notes or emails for Kentucky State University's current director of the facilities management department and/or the person hired, appointed, or transferred to take the place of Douglas 'Woody' Baldwin." Additionally, she requested "all personnel contracts, PFA forms, resumes, employment agreements, employment applications, correspondence, memos, notes, or emails for persons hired in the facilities management department since July 2000."
In a response dated December 13, 2000, 1 but received on January 31, 2001, KSU's open records coordinator, Melanie Halliday advised Ms. Crace as follows:
Regarding your last two Open Records requests:
Request concerning the facilities department:
Kentucky State University will provide any and all documents in its possession related this. The University will make every effort to comply with this request by February 5, 2001.
Request concerning University and Land Grant vehicles:
Kentucky State University will provide requested information. The University will make every effort to comply with this request by February 5, 2001.
Request concerning Coca-Cola:
Kentucky State University will provide requested information. The University will make every effort to comply with this request by February 6, 2001.
On February 6, 2001, Ms. Crace called Ms. Halliday's office, and was advised that Ms. Halliday "would be tied up in back to back meetings and would not be available until around 6 p.m." This appeal followed.
In a supplemental response directed to this office, Ms. Halliday defended KSU's disposition of Ms. Crace's January 24 and 25 request. With reference to the projected compliance dates, she observed:
I thought I made it clear to Ms. Crace that those were dates projected on my part to try to supply the information within a reasonable time frame. Unfortunately, the information was not sent to my office by those dates, and before I could inform Ms. Crace of the delay, she had registered her appeal.
In her letter of appeal, Ms. Crace refers to a phone call she placed to my office on February 6, 2001. Ms. Crace wrote that she, "? was told Ms. Halliday would be tied up in back to back meetings and would not be available until around 6 p.m." Her next statement requesting your intervention leads me to believe that she feels she was misled. The fact is, I was in back-to-back meetings . . . . I have never lied to Ms. Crace or anyone else about my availability, and I would never presume to ask any of my colleagues to lie for me. Also, I did return Ms. Crace's call on two separate occasions that day, once during a break in the meeting and once when I returned to my office that evening. Each time I left Ms. Crace a voice-mail message which she has never acknowledged.
In closing, Ms. Halliday noted that when very broadly worded requests, such as Ms. Crace's, are submitted to KSU "many departments at the University are involved in gathering information." Under these circumstances, she concluded "it would be extremely difficult for any one person to ensure that every 'i' is dotted and every 't' crossed."
On February 16, 2001, Ms. Crace supplemented her appeal with a copy of a February 9 letter to her from Ms. Halliday. The full text of Ms. Halliday's response follows:
Regarding your last two Open Records requests, please find a packet enclosed containing information on the following:
. Request concerning the facilities department.
. Request concerning University and Land Grant vehicles.
. Request concerning Coca-Cola:
If you have any questions concerning this matter, you may contact me . . . . 2
Ms. Crace focused on KSU's disposition of her request for records relating to Cocoa-Cola Inc. She noted that on February 13, she was advised by William D. Pennell, chief financial officer at KSU, that there is no current contract between the University and Cocoa-Cola, and that the 1992 contract, which expired in 1998, had been "de facto extended." Mr. Pennell indicated that KSU is in the process of developing a request for proposals to solicit bids for beverage services. He advised her that the only existing contract for beverage services is the 1992 contract with which she had been furnished a copy. Ms. Crace enclosed copies of all records relating to Cocoa-Cola that KSU released to her. A review of these records, along with KSU's earlier correspondence with Ms. Crace discloses a number of irregularities which, taken as a whole, constitute procedural and substantive violations of the Open Records Act. We analyze these violations below:
KRS 61.872(5)
KRS 61.880 establishes the legal obligations of a public agency upon receipt of an open records request. Subsection (1) of that provision requires a public agency to respond to the requesting party in writing, and within three business days of his request, by releasing the records identified in the request, or citing a statutory basis for denying access and explaining its application to the record withheld. These requirements, the Attorney General has often noted, "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. Discharge of these duties is required by law, and is as much a legal obligation of a public agency as the provision of services to the public. 00-ORD-117, p. 3.
The only exception to the requirements of KRS 61.880(1) is found at KRS 61.872(5). That statute provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
In construing this provision, the Attorney General has observed:
Unless the requested record is "in active use, in storage or not otherwise available," the agency has only three business days to reach a determination on disclosure of public records and to notify the requester of its final decision. If a period of time greater than three business days is required, the agency must give "a detailed explanation of the cause . . . for further delay" and state "the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.872(5). Failure to comply with these provisions constitutes a violation of the Open Records Act.
99-ORD-13, p. 5, 6.
In the appeal before us, Ms. Halliday notified Ms. Crace that copies of the records identified in her January 25 request would be available on February 5, and copies of the records identified in her January 24 request would be available on February 5 (vehicles records) and 6 (Cocoa-Cola records). This response was deficient in that it failed to provide Ms. Crace with a detailed explanation of the cause for delay. Moreover, KRS 61.872(5) envisions designation of the place, time, and earliest date certain, not a projected or speculative date, when the records will be available for inspection. The response was also deficient in failing to state the place, time, and earliest date certain on which the records would be available. 98-ORD-3. (KSU's failure to provide specific date on which records would be available, and a detailed explanation of the cause for delay constituted a violation of KRS 61.872(5)).
Given the breadth of Ms. Crace's requests, and the apparent difficulties associated with locating and retrieving the records, we believe that an extension of the standard three day deadline for agency response and release of records was warranted. As we noted in 93-ORD-134:
The Open Records Act does not prescribe a reasonable time within which access must be afforded to public records. As we have 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. However, when a request is made for voluminous records for a period of several years, such time limitations are virtually impossible to meet.
. . .
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.
93-ORD-134, p. 11, 12. Nevertheless, we remind KSU that "[e]very request to inspect a public record causes some inconvenience to the staff of the public agency . . . [, and] it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection. " OAG 77-151, p. 3. And, as noted above, any such extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain. Absent an unforeseen emergency, that commitment must not yield to the press of other business.
If Ms. Halliday is to act as open records coordinator for KSU, and if an applicant's right to inspect, or obtain copies of, public records is conditioned on her availability, then she must be available on the date designated for inspection or receipt of copies. This is not a courtesy extended to the public by the University, but a legal duty imposed on the University, and all public agencies. The failure to discharge this duty constitutes a violation of the Open Records Act.
KRS 61.880(1)
Turning to the substantive issues in this appeal, we find that the response issued by KSU on February 9 was deficient insofar as it failed to identify records to which access was denied on the basis of their nonexistence, and, pursuant to KRS 61.8715, to provide some explanation for the nonexistence of the records. We focus, in particular, on records relating to the University's ongoing contractual relationship and Cocoa-Cola, Inc., but our analysis extends to any other records to which access was denied on the basis of their nonexistence.
On February 9, 2001, KSU released to Ms. Crace records responsive to her January 24 request for:
a signed contract, and all payments, contracts, requisitions, correspondence or emails between Kentucky State University and Cocoa-Cola Inc. for vendor services, . . . any and all bid documents, bidder submissions related to the award of the contract to Cocoa-Cola Inc. [, and] any and all payments Kentucky State University has received from the Cocoa-Cola Foundation or correspondence related to future payments from December 1999 until present.
KSU furnished Ms. Crace with "a packet . . . containing information on . . . [her] request concerning Coca-Cola," consisting of records described in the packet content summary as "any and all contracts, payments, requisitions, correspondence or emails between Kentucky State University and Cocoa-Cola Inc. for vendor services and any and all bid documents, bidder submissions related to the award of the contract to Cocoa-Cola Inc." Enclosed in the packet were an expired 1992 contract with Cocoa-Cola Inc. and a renewal and extension agreement, as well as a letter dated January 25, 2000, and signed by KSU Vice-President Carson Smith, to the Cocoa-Cola's Education Market Group Accounting Manager "immediate[ly] notif[ying]" him that KSU "plans to develop an RFP to competitively bid [its] beverage service." The packet did not contain a current contract, or extension agreement effective through 2001, nor did it contain an RFP or bid documents related thereto. From this, we must assume that no such records exist.
This assumption was, in fact, confirmed by Chief Financial Officer William Pennell in his February 13 conversation with Ms. Crace. He explained that the only contract between KSU and Cocoa-Cola Inc. in existence is the expired contract that the University has "de facto extended." Further, Mr. Pennell advised that KSU is "currently in the process of putting together an RFP . . . to solicit bids for beverage services." KSU's inability to produce these records due to their nonexistence is tantamount to a partial denial of Ms. Crace's request, and it was incumbent on the University to so state in clear and direct terms. OAG 86-38; OAG 91-101; 96-ORD-164; 97-ORD-16.
This office has long recognized that a public agency cannot furnish copies of records that do not exist. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17; 97-ORD-116. However, in 1994 the Open Records Act was amended. The Act now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740, dealing with the management of public records, and KRS 61.940 to 61.957, dealing with the coordination of strategic planning for computerized information systems]." KRS 61.8715. The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id.
Since these amendments took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based on the nonexistence of the requested records. In order to satisfy its statutory burden of proof, an agency must, at a minimum, offer some explanation for the nonexistence of the records. See, for example, 94-ORD-140 (records of investigation not in sheriff's custody because sheriff did not conduct investigation); 97-ORD-17 (evaluations not in university's custody because written evaluations were not required by university's regulations).
In the appeal before us, KSU neither advised Ms. Crace that it could not honor her request for a current contract or RFP and related bid documents because no responsive records exist, nor did it provide her with an explanation for their nonexistence, such as the explanation later provided orally by Mr. Pennell. In failing to do so, it did not sustain its statutory burden of proof relative to the partial denial of her request. KRS 61.880(2)(c). These omissions in the disposition of Ms. Crace's request constituted a substantive violation of the Open Records Act.
Although there are occasions when, under the mandate of KRS 61.8715 , this office refers an appeal concerning the unexplained nonexistence of public records to the Department for Libraries and Archives for a determination whether additional inquiries are warranted under Chapter 171, and in particular KRS 171.640 requiring adequate and proper documentation of essential transactions of the agency, this appeal does not warrant additional inquiry. Whatever the reason for the nearly one year delay in issuing an RFP, soliciting bids, and awarding a contract for beverage vendor services, we know, by virtue of Mr. Pennell's candor, that no responsive records were released because none exist, or if they exist, are in a preliminary stage (which fact should also have been disclosed, if appropriate, along with citation to KRS 61.878(1)(i) and/or (j) and a brief explanation).
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 proceedings.
Beth CraceP. O. Box 368Frankfort, KY 40601
Melanie HallidayOpen Records CoordinatorKentucky State University202 Hume Hall400 East Main StreetFrankfort, KY 40601
Harold S. Greene, Jr.Legal CounselKentucky State UniversityFrankfort, KY 40601
Footnotes
Footnotes
1 Ms. Halliday subsequently explained this discrepancy. In a letter dated February 14, 2001, she indicated that she "often reuse[s] letter forms when [she] is addressing the same person." Acknowledging that she failed to change the date, Ms. Halliday asserted that this "was a mistake and not a ploy . . . [and that she had] no intention to confuse or mislead Ms. Crace."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
2 An attachment to Ms. Halliday's letter stated:
Packet Content Summary
Any and all personnel contracts, employment agreements, PAF forms, resumes, employment applications, correspondences, memos, notes or e-mails for KSU's current director of the facilities management department and/or the person hired, appointed or transferred to take the place of Douglas Baldwin.
Any and all personnel contracts, PAF forms, resumes, employment agreements, employment applications, correspondences, memos, notes or e-mails for persons hired in the facilities management department since July 2000.
Any and all payments, contracts, correspondence, memos, notes or e-mails for vehicle purchases for the Land Grant program from July 1998 to the present. More specifically, any and all requisitions and documents showing the assignment or reassignment for vehicles purchased and used for the Land Grant program to any other Kentucky State University employee from July 1998 to the present.
A copy of the federal grant application and vehicle specifications for those Land Grant vehicles.
Records, including documents from the motor pool, showing the dates, purpose of trip and persons using and destinations of Land Grant vehicles from July 1998 to the present.
Documentation showing what University vehicles have been used by and leased for President Reid or members of his family from July 1998 to the present and the mileage on those vehicles.
Documentation showing dates, purposes of trips, persons using, and destinations of those vehicles from July 1998 to the present. *Please note: Land Grant has only recently begun generating trip tickets for vehicle use, and those are included. Prior to that, only calendar sign-in sheets were used. We are in the process of trying to obtain copies of those sheets, and they will be sent as soon as possible.
Any and all contracts, payments, requisitions, correspondence or e-mails between Kentucky State University and Cocoa-Cola Inc. for vendor services and any and all bid documents, bidder submissions related to the award of the contract Cocoa-Cola Inc.
Any and all payments KSU has received from the Cocoa-Cola Foundation or correspondence related to future payments from December 1999 to the present.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -