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 Christian County School District violated the Open Records Act in the disposition of Kentucky New Era reporter Melony Leazer's requests for access to records relating to the academic performance of student athletes in the District. For the reasons that follow, we find that although the District acted in good faith in conducting what, in its view, was an adequate search for records that were responsive to Ms. Leazer's original request, that search did not satisfy the standard for an adequate search set forth in 95-ORD-96. However, we further find that its refusal to create records in order to honor her request in full did not constitute a violation of the Act.
On March 7, 2002, Ms. Leazer requested access to:
1. An electronic database copy, such as a spread sheet, or paper copies of the most recent grade-point averages for all high school student-athletes in the Christian County Public School System who have played or participated in at least three games during the 2001-02 academic year. This would need to include each student's race, grade level, and the sport being played.
2. An electronic database copy, such as a spread sheet, or paper copies of the most recent grade-point averages for all current high school student-athletes in the Christian County Public School System. This would need to include each student's race, grade level, and the sport being played.
Ms. Leazer noted that "[a]ccording to KRS 61.878(2), disclosure of statistical information will not reveal or describe 'any readily identifiable person.'" 1 On March 8, Andrew C. Self, representing the Christian County School District in this matter, notified Ms. Leazer that "no such records exist at the present time," and that pursuant to KRS 61.870, as interpreted in 97-ORD-18, "the right to inspect records attaches only after those records have been prepared, owned, used, in the possession of or retained by a public agency. "
In her letter of appeal, Ms. Leazer describes subsequent events:
After the March 8 denial of my request, I learned from the athletic director at one of the high schools that he had provided [Director of Pupil Personnel Sarah Kranz, to whom the open records request was directed] with documents containing the information I requested for the student athletes in selected sports at one school. I contacted the school board attorney about this apparent discrepancy and he assured me he would talk to Kranz about the request. On March 21, Kranz furnished me with the documents she received from the athletic director. Although incomplete in that they did not include student athletes in all sports at even one school, those documents, which the school system denied existed in its letter of March 8, were responsive, at least in part, to my request and should have been provided immediately after my March 7 request. Additionally, Kranz advised me in a handwritten note on the envelope containing the records March 21 that "only one school provided the sport (s) the students participated in." However, she apparently made no effort to determine if the other school had such record or if the one school from which she did finally produce some records had similar records for other sports. . . .
In addition, I have recently learned that the school system uses a computerized student-information system from Software Technology Inc. that contains all the demographic information I requested about each student in the school system. According to an information technology supervisor with the school system, one of the few school administrators who has full, unrestricted access to the districtwide data is the director of pupil personnel, Sara Kranz. Since my first choice of a medium to receive these records was as "(a)n electronic database copy," the data in the STI database also is clearly responsive to my request and should be provided immediately.
On appeal, Ms. Leazer argues that the Christian County School District failed to conduct an adequate search for records responsive to her original request, and that notwithstanding its knowledge that the requested data can be extracted from the STI database, the District has yet to make full disclosure. In Ms. Leazer's view, the district's "immediate and frivolous denial" of her request subverted the intent of the Open Records Act.
In a supplemental response directed to this office following commencement of Ms. Leazer's appeal, Mr. Self elaborated on the District's position:
In or about late February, 2002, Ms. Leazer contacted Ms. Kranz, and requested certain information pertaining to academic achievement of student-athletes in the two local high schools. Ms. Kranz then immediately requested what she believed to be responsive information from the athletic directors at the two high schools. Because the information received from each athletic director was slightly different, Ms. Kranz attempted to compile and aggregate the data into one report. A copy of that report which includes the grade, gender, and grade point average of the student-athletes in the District is attached hereto as Exhibit A. This information was provided to Ms. Leazer several days in advance of a meeting of coaches and school administrators on March 5, 2002, at which time the report prepared by Ms. Kranz was released to the public.
. . .
Immediately upon receipt of Ms. Leazer's March 7 open records request, Ms. Kranz again contacted the athletic directors at each of the local high schools to inquire whether such "electronic database" records existed. In response, both athletic directors indicated that no such database records existed and further stated that the information previously provided to Ms. Kranz by them was primarily compiled and prepared by each of them by manually looking up grade-point averages, each student's race, etc. as opposed to being a record which already existed and was maintained in the normal course of business.
Following Mr. Self's March 8 denial of Ms. Leazer's request and several telephone conversations with Ms. Leazer "to determine how to accommodate her request without unnecessarily requiring Ms. Kranz and others to spend an inordinate amount of time compiling and preparing records" that would not otherwise exist:
Ms. Kranz provided additional records to Ms. Leazer on or about March 21, 2002. This information consisted of records provided by Jim Perrin, Athletic Director at Christian County High School, who provided print-outs of certificates of eligibility (presented to the Kentucky High School Athletic Association) for each of his school's athletic teams. Coach Perrin then manually looked up and wrote in the grade point averages of these students and also indicated whether the student-athlete was black or white.
The District received no additional requests after March 21, 2002, for records nor did the District receive any communications indicating that the records or information provided was not responsive to the request or not satisfactory. There was, however, another forum in which student achievement was discussed by coaches and school administrators, which may have resulted in the filing of this appeal/complaint by Ms. Leazer. At that meeting on March 27, 2002, one of the coaches, Gretchen Logan, who is also a Guidance Counselor at Hopkinsville High School, indicated that certain student information can be maintained on an "STI database" at the schools which should also be accessible to District-wide personnel such as Ms. Krantz.
Both immediately following the meeting and in subsequent conversations, Ms. Logan advised Ms. Leazer that although the capability exists of maintaining such a database, no such database is maintained at Hopkinsville High School. Until April 15, 2002, Coach Perrin, the Athletic Director at Christian County High School, had on several occasions informed Ms. Kranz that no such database existed at Christian County High School either. However, upon receipt of the notification of Ms. Leazer's appeal, Ms. Kranz again inquired about the existence of such a database at either high school. For the first time, Ms. Kranz was advised that Alicia Lancaster, the Assistant Athletic Director at Christian County High School had in fact "inputted" the necessary information to compile such a database at Christian County High School.
Mr. Self emphasized that Coach Perrin was unaware of the existence of the database until April 15. He advised that to the extent that database contains responsive records, "it can be and will be made available for her review. . . ." He reiterated that no such database exists at Hopkinsville High School.
In closing, Mr. Self disputed Ms. Leazer's claim that the District's response was "frivolous," noting that District employees "expended a great deal of time, energy and money attempting to respond to and satisfy Ms. Leazer's request." He concluded:
Based on the due diligence conducted by the District at the time it received the open records request from Ms. Leazer, the District did not believe that it had a "database" that was responsive to Ms. Leazer's request. At this time, the District acknowledges that it does have a database from only one of the two local high schools, which may be responsive to her request (although most, if not all, of the information contained in this database has already been provided to Ms. Leazer). As previously indicated, that information will be made available to Ms. Leazer for her review and inspection.
Additionally, and for the first time, Mr. Self argued that Ms. Leazer's request "is more precisely for 'information' as opposed to 'records,'" and that his client is not required to compile information, although it has "already done this on at least two occasions." 2
The issue presented in this open records appeal relates not to the District's invocation of a statutory exemption as the basis for denying the Kentucky New Era's request, but to the adequacy of its search for records responsive to that request and its obligation to disclose nonexempt records subsequently located. In numerous open records decisions, we have declared that the Attorney General is not equipped, as a rule, to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 4. Nevertheless, we proceed with an analysis in the appeal before us based on the District's admission that partially responsive records existed at the time of the March 7 request but were not located in its original search.
It is well established that a public agency cannot afford a requester access to a record which does not exist. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17; 97-ORD-103. As noted, it is not within our statutory charter to investigate in order to locate documents which the requesting party maintains exist, but which the agency states do not exist, or to otherwise resolve a dispute arising from such a disparity. 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 requirement 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, document what efforts were made to locate the requested records, and 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).
Mr. Self indicates that the District's original search for records responsive to Ms. Leazer's informal request, which was conducted by Ms. Kranz in late February, yielded no responsive records but that a report was nevertheless generated, at least in part, to satisfy that request. 3 Ms. Kranz obtained the information contained in this report from the athletic directors at Christian County High School and Hopkinsville High School to whom she directed her search inquiry. Upon receipt of Ms. Leazer's formal open records request, Ms. Kranz again directed her search to the athletic directors and that search again produced no results. Some time later, Christian County High School's athletic director provided Ms. Kranz with Kentucky High School Athletic Association certificates of eligibility, containing some of the data requested, and these certificates were subsequently disclosed to Ms. Leazer. Having been notified that Ms. Leazer had initiated an open records appeal challenging the District's disposition of her request, Ms. Kranz again contacted the athletic directors at the two high schools to confirm that no responsive databases exist and learned, for the first time, that the assistant athletic director at Christian County High School had created a student athlete database. On all of these occasions, except the last, Mr. Self acknowledges that the District's search never extended beyond Ms. Kranz and the two athletic directors.
Whether this methodology constituted an adequate search turns on the standard established in 95-ORD-96. At page seven of that decision, the Attorney General observed:
[T]he Open Records Act does not require an agency to conduct "an exhaustive exhumation of records ," Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight ." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D. N.Y. 1983). It is, however, 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, supra at 775. 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 Intelligence 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).
95-ORD-96, p. 7. As in 01-ORD-56 and 00-ORD-150, Ms. Kranz directed her inquiry to the first, and most obvious source, of data relating to student athletes. However, we do not believe that it would have been overly burdensome for her search to extend beyond the directors to the assistant directors, or other personnel in the athletic departments or the schools' administrations, who could reasonably be expected to maintain records relating to the student athletes. Compare 01-ORD-246, p. 10. (Education Professional Standards Board conducted adequate search for records relating to former employee when search inquiry was directed to former employee's supervisor and "those individuals in [her] 'chain of command' that could reasonably be expected to produce responsive records"). We are fully aware that the adequacy of an agency's search for records must be determined on a case by case basis, and we do not mean to suggest that an agency should be discouraged in its subsequent efforts to locate responsive records and to freely, and without fear of recrimination, make those records available to the requester. Nevertheless, the fact that a responsive database was located in one of the high schools on the third and final inquiry, and only after Ms. Leazer's appeal was initiated, suggests the inadequacy of the earlier searches. As in 00-ORD-150, had she "not diligently pursued the matter, the record might never have been located." 00-ORD-150, p. 5. We therefore conclude that the record on appeal supports Ms. Leazer's position that the Christian County School District failed to conduct an adequate search for responsive databases.
The record on appeal does not support Ms. Leazer's position that all requested data can be extracted from an existing districtwide STI database, and that the District's failure to produce such a database violated the provisions of the Act. In the absence of evidence to the contrary, we must assume the truthfulness of the statements made by Gretchen Logan to Ms. Leazer that no such database exists at the Hopkinsville High School, which she reiterated in a signed affidavit submitted to this office as Exhibit F to the District's supplemental response. As an obvious corollary of this holding, we do not believe that the District has a duty to create such a database, or any other record, to satisfy Ms. Leazer's open records request. Mr. Self is entirely correct in his assertion that the right to inspect public records under the Open Records Act attaches only after those records have been "prepared, owned, used, in the possession of or retained by a public agency. " Citing KRS 61.870(2) and 97-ORD-18. However, the District must, without further delay, provide her with the nonexempt portions of the Christian County High School student athlete database that is responsive to her request and that does not contain information that will otherwise lead to the identification of a specific student. Once it has done so, the Christian County School District will have discharged in full its statutory obligations under the Act.
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.
Footnotes
Footnotes
1 The actual text of KRS 61.878(2) states:
No exemption in [KRS 61.878] shall be construed to prohibit disclosure of statistical information not descriptive of any readily identifiable person.
Statistical information can, of course, be sufficiently descriptive as to readily identify a person. This was the central issue in Hardin County Schools v. J. Kyle Foster, Ky., 40 S.W.3d 865 (2001), a case involving access to statistical analyses of student discipline. Although the Kentucky Supreme Court ultimately resolved the issue in favor of disclosure, the Court acknowledged that "information that would reveal any personal characteristics of the student, including name or age, or information that would reasonably lead to identification of the student" must be withheld. Hardin County Schools at 867. Although not the issue in the appeal before us, we note that the statistical analyses released to Ms. Leazer (containing, for example, entries for a ninth grade male of Pacific Islands descent and a ninth grade female of Asian descent, coupled with the students' grade point average) comes very close to the disclosure of information that would reasonably lead to identification of a specific student in contravention of federal and state laws protecting student education records.
2 We are not persuaded by the District's belated argument that Ms. Leazer's March 7 request can properly be characterized as a request for information. Ms. Leazer requested copies of the Christian County Public School District's database in either electronic or hard copy format, reflecting grade point averages, race, grade level, and sport for all high school student athletes in the District. Although a database is a collection of data (or information), it is a record, albeit an electronic record, that clearly falls within the parameters of the Open Records Act. See KRS 61.870(2), 61.8715, and 95-ORD-82. The narrow question in this appeal is whether such a database existed and if so whether adequate steps were taken to locate and produce it for Ms. Leazer's inspection.
3 It is unclear whether the report prepared by Ms. Kranz and released to Ms. Leazer on March 1, which was also distributed at the District's March 5 meeting, was generated in response to Ms. Leazer's request or in anticipation of the March 5 meeting. The fact that Ms. Kranz assumed responsibility for creating an apparently nonexistent report did not obviate her duty to conduct an adequate search for existing records. To the extent that Ms. Kranz did so, however, Ms. Leazer could not reasonably complain about the paucity of data disclosed since Ms. Kranz was under no statutory duty to create the report.