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 the Jefferson County Public Schools violated the Open Records Act in the disposition of Frederic J. Cowan's February 14, 2002 request for twelve categories of records generated in the period from January 1, 2001 to the present, and three additional categories of records generated in the period from January 1, 1997 to the present. For the reasons that follow, we find that JCPS's original response was procedurally deficient but otherwise find no error in the disposition of Mr. Cowan's request.
In a letter dated February 19, 2002, JCPS Public Information Officer Lauren E. Roberts responded to Mr. Cowan's request, advising him as follows:
We are in the process of researching the information you requested. Due to the volume of your request, we will forward available information . . . no later than March 29, 2002.
Shortly thereafter, Mr. Cowan initiated this appeal asserting that JCPS "failed to comply with the KRS 61.880 by simply choosing to ignore the three-day requirement and to provide the documents on its own timetable." It was his position that "[t]he requested documents are not so voluminous as to require a delay."
In a supplemental response directed to this office following commencement of Mr. Cowan's appeal, Ms. Roberts elaborated on JCPS's position. She explained:
We do not wish to deny Mr. Cowan access to these public records. Our attempt was to make a thorough search for the 15 categories of records that he requested. In order to retrieve the records, we must perform a search of many school district offices in a number of locations. Mr. Cowan has requested records that date back to January 1, 1997, and are no longer in active use. In addition, Mr. Cowan has requested that the records be copied, not simply made available for his inspection.
Having commenced the search for responsive records, JCPS revised the estimated disclosure date from March 29 to March 6.
On March 6, Ms. Roberts forwarded the responsive records, consisting of 476 pages, four union agreements, one videotape, one cassette tape, and one microcassette tape, to Mr. Cowan. She indicated that information, consisting of home addresses, social security numbers, race and gender codes, and home telephone numbers, had been redacted from the records pursuant to KRS 61.878(1)(a), reasoning that the redacted information "is of a personal nature and does not reflect upon the discharge of an employee's official duties," that inspection of the redacted information would serve no public interest, and that therefore disclosure of the redacted information would constitute a clearly unwarranted invasion of personal privacy. In denying Mr. Cowan access to the home addresses and telephone numbers of student athletes, Ms. Roberts also relied on KRS 61.878(1)(k) and (l), incorporating the confidentiality provisions of the Family Educational Rights and Privacy Act (20 U.S.C. 1232g) and the Kentucky Family Education Rights and Privacy Act (KRS 160.700, et seq. ) into the Open Records Act. In closing, Ms. Roberts advised Mr. Cowan that "[t]here are no documents responsive to the request in Category # 15," relating to "records constituting a settlement agreement regarding any litigation, proposed litigation, dispute or disciplinary action between any athletic director, coach or assistant coach and [JCPS] in the period from January 1, 1997 to the present."
It is the opinion of this office that JCPS's supplemental response to Mr. Cowan's appeal was sufficiently detailed to satisfy the requirement of KRS 61.872(5) relating to public records that are in active use, in storage or not otherwise available, and requiring a "detailed explanation of the cause" of any delay in inspection beyond the mandatory three day inspection date. Further, it is the opinion of this office that JCPS discharged its statutory duty by affording Mr. Cowan timely access to the wide range of records identified in his request and by sustaining its burden of proof relative to the partial denial of that request based on KRS 61.878(1)(a), and the nonexistence of records responsive to his Category # 15 request. However, we agree with Mr. Cowan that JCPS's original response to his February 14 request was deficient insofar as it failed to explain the cause for delay and to state the earliest date on which the records would be available for inspection. With regard to remaining records access issues, if any, we remind the parties that this office is not, in general, equipped to resolve a dispute concerning a disparity "between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 9.
In a recent open records decision, the Attorney General observed:
"The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1). [T]he Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
(Emphasis added.) Additionally, we note that in OAG 92-117 this office made abundantly clear that the Act "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 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented." OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 84-300, p. 3; see also 93-ORD-134 and authorities cited therein. Pursuant to KRS 61.872(5), "any 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." 01-ORD-38, p. 5.
01-ORD-140, pp. 3, 4.
The record on appeal in OAG 92-117, cited above, supported an agency delay of twenty-one days in honoring an open records request. The agency, Department for Social Services, demonstrated that it served one hundred and twenty-three local offices in one hundred and twenty counties across the state, each of which maintained its own records. Requests for records maintained in local offices were nevertheless processed by and through the Department for Social Services, which was obliged, upon receipt of a request, to locate the records in the appropriate county office, retrieve those records, and review them before releasing them for inspection. Given the broad scope of the request ("any and all records in the possession of the [then] Cabinet for Human Resources upon which [requester's client's] name appears or which may concern her"), the ongoing nature of the Department's investigation into the requester's client, and the need to obtain a copy of the records, and review them upon conclusion of the investigation but prior to making disclosure, this office concluded that "twenty-one days [did] not constitute an inordinate delay in the release of public records, " warning that "we [did] not mean to adopt a rule of general application vis-a-vis 'timely access.'" OAG 92-117, p. 5.
Conversely, the record on appeal in 01-ORD-140, cited above, did not support a delay of ten to thirteen days. The requester identified three specific documents which he wished to inspect, and the records custodian acknowledged that he knew "precisely where the documents were located." The records custodian did not maintain that the records contained a mixture of exempt and nonexempt information, necessitating review prior to disclosure for purposes of redaction. Thus, we concluded that the agency did not offer a satisfactory explanation for the ten to thirteen day delay, and that its disposition of the request was inconsistent with the principle that "the value of information is partly a function of time." Fiduccia at 1041; see also 93-ORD-134; 99-ORD-44; 00-ORD-117.
We believe that the facts before us in this appeal are more closely akin to the facts before us in OAG 92-117 than the facts before us in 01-ORD-140. Although JCPS's original response to Mr. Cowan's February 14 request failed to satisfy the requirements of KRS 61.872(5), relative to detailed notification to the requester of the cause for delay beyond three business days and the earliest date for inspection, JCPS explained the problems associated with retrieving the records in its supplemental response and reduced the disclosure date from thirty-one days to fourteen days. Given the broad parameters of Mr. Cowan's request, the difficulties in locating and retrieving responsive records, and the necessity of reviewing them for purposes of redacting private information pursuant to KRS 61.878(1)(a) and 61.878(4) prior to disclosure, we find that the fourteen day extension of the deadline for inspection was not unreasonable. Any greater delay would violate the principle of timely access to public records. Further, we find that the explanation given for delay was sufficient. We encourage JCPS to provide greater detail in justifying unavoidable delays under KRS 61.872(5) in the future.
We find no error in JCPS's partial denial of Mr. Cowan's request. As noted, home addresses, social security numbers, race and gender codes, and home telephone numbers were redacted from the 476 pages disclosed to him on the basis of KRS 61.878(1)(a), and in the case of student athletes, on the basis of the federal Family Educational Rights and Privacy Act and its state counterpart. Existing authority amply supports JCPS's position relative to these redactions. See, e.g.,
Zink v. Commonwealth of Kentucky, Ky., App., 902 S.W.2d 825 (1994) (home address, telephone number, and social security number); 96-ORD-232 and 96-ORD-7 (race and gender of public employees). With reference to Mr. Cowan's request for settlement agreements between any athletic director, coach, or assistant coach and JCPS, JCPS discharged its statutory duty by notifying him that no responsive records exist. See, e.g., 93-ORD-134 and authorities cited therein. As we have so often noted, a public agency cannot afford a requester access to a document which does not exist or which it does not have in its custody or possession. 93-ORD-51, p. 4. Nor do we believe that the nonexistence of these records raises records management issues within the scope of KRS 61.8715. In the absence of evidence to the contrary, we must assume that JCPS has entered into no settlement agreements with an athletic director, coach, or assistant coach in the period identified in Mr. Cowan's request, and therefore no responsive records exist. The issues raised with respect to this portion of JCPS's partial denial of his request are factual, and not legal, in nature.
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.
Frederic J. Cowan400 W. Market Street, Ste. 2200Louisville, KY 40202-3354
Lauren E. RobertsVanHoose Education CenterP.O. Box 34020Louisville, KY 40232-4020
Rosemary MillerOffice of General CounselVanHoose Education CenterP.O. Box 34020Louisville, KY 40232-4020