Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the actions of Eastern Kentucky University relative to the request of Richard L. Frymire violated the Kentucky Open Records Act. With respect to those existing records in the custody of EKU which are responsive to Mr. Frymire's request, EKU has discharged its statutory duty by providing Mr. Frymire with copies. Accordingly, any issues relative to those records are now moot so this office must decline to issue a decision on the merits. Assuming that EKU does not possess any records which are responsive to the remainder of Mr. Frymire's request, EKU is not obligated to compile lists or create such records, and therefore did not violate the Act in partially denying his request on this basis. To the contrary, EKU fully complied with the Open Records Act by affirmatively indicating to Mr. Frymire in writing that no responsive records exist. 1
By letter dated February 11, 2005, Mr. Frymire initiated this appeal requesting that EKU "be compelled to either provide the requested records or deny inspection of same pursuant to KRS 61.880." As explained by Mr. Frymire:
By letter mailed in December 2004, [EKU], by counsel, advised that the requested records would be made available after Christmas and no later than January 14, 2004. To date, the requested records have not been made available and [EKU] has given no reason, either in writing or verbally, for their failure to respond to our request.
Attached to Mr. Frymire's appeal is a letter directed to Cheryl Harris, University Counsel, on December 6, 2004, in which Mr. Frymire acknowledges receipt of a telephone message which Ms. Harris left on November 30, 2004. Although Mr. Frymire "called on several occasions and left messages, " EKU did not make further contact. Enclosed was a copy of Mr. Frymire's request for various records and specific information regarding his client, Sarah Brown Clements, a copy of which is attached to his appeal, along with a Release and Authorization "if such is required," a copy of which is lacking.
Upon receiving notification of Mr. Frymire's appeal, Ms. Harris responded on behalf of EKU. "By way of background," Ms. Harris outlines the sequence of events which culminated in this appeal. According to Ms. Harris:
. . . Mr. Frymire's initial letter to the University dated November 18, 2004, was received by it on November 23, 2004, and alluded to a request for certain records which would be directed to University Counsel; however, no such request for records was included with that correspondence. During a lengthy phone conversation between Mr. Frymire and the undersigned on December 6, 2004, regarding Mr. Frymire's request for relief for his client's academic standing, Mr. Frymire asked whether he had included a list of requests with his initial letter and he was told that no such request was included. Then, in a letter dated December 6, 2004, but received December 10, 2004, addressed to the undersigned, Mr. Frymire did include a list of requests. These requests sought education records pertaining to a particular student, and Mr. Frymire stated that a Release and Authorization Form from the student[t], his client, was included to release such records; however, no such form was included with the letter.
In conclusion, Ms. Harris observes that EKU included the "non student confidential information available at that time" with its initial response, but did not receive the Release and Authorization for the remainder of the requested items until January 14, 2005. Since that time, EKU "has sought to determine the availability of the requested information, compile the available information and copy it for Mr. Frymire. It has not been the intention of [EKU] to unreasonably delay in responding to these requests." 2 Attached to Ms. Harris's response is a copy of a letter dated February 18, 2005, addressing each of the items requested in detail. Copies of those existing records in the custody of EKU which are responsive to Items 1-6 3 of Mr. Frymire's request were enclosed with her response. However, EKU denied Mr. Frymire's request as to Items 7-11 4 because those requests are for information rather than existing documents.
Having received no response, Ms. Harris directed a letter to Mr. Frymire on March 8, 2005, referencing her letter of February 18, 2005, and the accompanying records, the disclosure of which Ms. Harris assumed had satisfied Mr. Frymire's appeal as Mr. Frymire had not indicated otherwise. 5 Although Ms. Harris requested that Mr. Frymire notify her office "as soon as possible" whether he was satisfied with the production of those records so that she could advise this office accordingly, Mr. Frymire did not respond until March 11, 2005, at which point Mr. Frymire advised Ms. Harris and this office that the materials faxed to his office on February 18, 2005, are "incomplete and non-responsive to request numbers 7, 8, 9, 10 and 11." Although Mr. Frymire alleges that the Dean of each College is in possession of the materials requested, and that honoring his request would only require examination of "data presently compiled and maintained" by EKU, documentation to this effect is noticeably absent. Based on the evidence of record, this office finds no error in EKU's response to Mr. Frymire's request.
With respect to Items 1-6 of Mr. Frymire's request, any related issues raised by this appeal are now moot. 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has long recognized that if access to public records which are the subject of a request is initially denied but subsequently granted, "the propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. Because the record reflects that EKU has provided Mr. Frymire with copies of any existing records which are responsive to his request as to Items 1-6, even though some of those records or portions thereof are arguably exempt, any issues relative to those records are now moot. That being the case, this office must decline to address the merits of his appeal as to those records. Accordingly, the question becomes whether EKU properly denied Mr. Frymire's request as to the remaining items at issue.
Because Items 7-11 are properly characterized as requests for information rather than specifically described public records, EKU was not statutorily obligated to honor Mr. Frymire's request as to those items. On this issue, 04-ORD-144, a copy of which is attached hereto and incorporated by reference, is determinative. As long recognized by the Attorney General, a public agency is not required to compile a list or create a record solely for the purpose of satisfying an open records request. Id., p. 7 (citations omitted). In the alternative, EKU has affirmatively indicated that the specified departments and colleges do "not compile or maintain records" containing the requested statistical information. It stands to reason that a public agency cannot afford a requester access to records that it does not have or which do not exist as the Attorney General has consistently held. 03-ORD-205, p. 3, citing 99-ORD-98. With regard to denials based on the nonexistence of requested records, the reasoning of 04-ORD-198, a copy of which is attached hereto and incorporated by reference as to this issue, is equally applicable here. Because EKU properly denied the requests at issue on the former basis, and Mr. Frymire has not demonstrated, nor does the record reveal that EKU is obligated to maintain records containing information of the type requested, further elaboration as to the records management issues implicated by this appeal is unwarranted. Hopefully, this matter can be satisfactorily resolved by both parties exhibiting a spirit of cooperation.
A party aggrieved by this decision may appeal it by initiating an 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.
Footnotes
Footnotes
1 Absent evidence to the contrary, this office originally assumed that any issues raised by the instant appeal became moot upon release of those existing records which are responsive to Mr. Frymire's request. However, Mr. Frymire belatedly advised this office that the response from EKU dated February 18, 2005, is deficient in his view as to Items 7-11, via facsimile dated Thursday, March 10, 2005, but received by this office on Friday, March 11, 2005. Because the statutory deadline for this decision is Monday, March 14, 2005, the issues presented have been conclusively resolved in prior decisions of this office, and this appeal presents no reason to depart from precedent, this decision will necessarily be succinct.
2 In short, the evidence of record supports this assertion.
3 Items 1-6 areframed as follows:
1. Written policies and procedures in use in 2004 by EKU in regard to oral testing of candidates for graduate level degrees.
2. All correspondence, memos, e-mails and logs of telephone calls exchanged by faculty and/or administration in regard to student Sarah Brown for years 2002, 2003 and 2004.
3. The standards in use at EKU for test questions and scenarios used by the test panel for the oral examinations administered to Sarah Brown in July 2004 and November 2004.
4. All written material used or referenced by the panel members in July 2004 and November 2004 to (1) prepare for the examination of the panel during the course of the examination; (2) notes produced by the members of the panel during the course of the examination and (3) notes, memos and grade guides generated by the panel members after the examination.
5. Written policies and procedures in use in 2004 by EKU to grant relief in regard to an allegation of bias of a panel member who administers an[] oral test to a student, or alleged bias by a member of a panel considering the recommendation for tenure for a faculty member.
6. Written policies and procedures in use in 2004 at EKU to train, prepare and qualify a faculty member to objectively administer an oral examination.
4 Items 7-11 areframed as follows:
7. Number of students at EKU who were administered oral examinations in 2002, 2003 and 2004.
8. Number of students at the EKU College of Education who were administered oral examinations in 2002, 2003 and 2004.
9. Number of students at the EKU College of Education, Department of Communication Disorders who were administered oral examinations in 2002, 2003 and 2004.
10. Number of students at EKU that failed any oral examination in 2002, 2003 and 2004. For each student, identify the College and Department.
11. Since the inception of the Department of Communication Disorders, list by year the number of candidates for the Master of Arts with Major in Communications Disorders -- Speech Therapy that had a GPA of 3.3 or higher and who were rejected upon oral examination by the faculty and/or Department.
5 In closing, Ms. Harris observed:
Of course, I realize that you may wish to discuss further the underlying reason for your open records request or the content of our responses. I will be out of my office on Wednesday, March 9, 2005, and will return on March 10, 2005, so feel free to contact me if you wish to discuss further.