Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Northern Kentucky University violated the Kentucky Open Records Act in partially denying Richard Feist's request for an opportunity to inspect redacted copies of all records concerning the "now filled position of Superintendent of Roads/Grounds and Transportation." Because this office has consistently held that application materials of unsuccessful applicants for public employment, as well as other documentation generated during the interview and selection process, are protected by KRS 61.878(1)(a), the same result necessarily follows here; 04-ORD-003 and 00-ORD-90 are controlling on the facts presented. To the extent NKU initially failed to either produce any existing records which are both responsive to Mr. Feist's request and nonexempt within three business days, in accordance with KRS 61.880(1), or give a detailed explanation of the cause for delay and the date certain on which the records would be available, in accordance with KRS 61.872(5), NKU committed a procedural violation of the Act. However, NKU cannot produce for inspection or copying nonexistent records or those which it does not possess, nor is this office is empowered to resolve disputes concerning discrepancies between the records being sought and those provided.
On March 7, 2007, Mr. Feist requested electronically 1 that NKU provide for his inspection redacted (acknowledging "that names, SS# 's and other personal information are exempt") copies of the following:
1) All documents describing the educational background and work experience including but not limited to: applications, [resumes], cover letters, letters of recommendation and [e-mails] for all applicants interviewed for the position of Superintendent of Roads/Grounds and Transportation. (Application deadline was January 10, 2007; position filled March 1, 2007).
2) All printed and [handwritten] notes, interview and selection forms, questions, responses and electronic communications used or generated by, among and between the [H]iring [C]ommittee members, the applicants and any personnel in the offices of the Physical Plant, Facilities Management (Larry Blake), the Vice President's office (Ken Ramey's office), Human Resources, Affirmative Action and Legal Affairs during the interview and selection process.
3) All printed, [handwritten], and electronic correspondence and forms including recorded conversations between or among the [H]iring [C]ommittee members, applicants and personnel [of the aforementioned offices] including but not limited to: Denny Allen, Lori Southwood, Michael Ellis, Larry Blake, and Ken Ramey. This request includes all internal documents completed and processed by the [U]niversity [,i.e.] all Affirmative Action forms/requests, PAR's etc., the hiring letter and all other communications between Mr. Gary Easton, applicants, university staff members and/or selection committee members.
In a letter dated March 26, 2007, Mr. Feist initiated this appeal challenging the disposition of his request; attached to Mr. Feist's letter "are e-mails providing evidence of the lengthy process employed by" Sara L. Sidebottom, Vice President of Legal Affairs and General Counsel, in responding to his request. 2
Upon receiving notification of Mr. Feist's appeal from this office, Ms. Sidebottom responded on behalf of NKU. 3 Acknowledging receipt of Mr. Feist's electronic request on March 8, 2007, Ms. Sidebottom indicates that she "contacted him on March 9, 2007 to discuss an extension to the three day time limit; Mr. Feist agreed to the extension." Because Mr. Feist "waived the time limit and agreed to an extension," 4 Ms. Sidebottom asserts that NKU complied with KRS 61.872(5). Second, Ms. Sidebottom argues that NKU "fully conveyed to Mr. Feist the reasons for the extension." More specifically, Ms. Sidebottom informed Mr. Feist during telephone conversations that "several of the record custodians were unavailable, but that every effort would be made to meet with them in a prompt manner." In the telephone conversation of March 9, 2007, and subsequent e-mail, Ms. Sidebottom "notified Mr. Feist that the earliest time [she] could meet with the Human Resources Officer was Monday, March 12, 2007." Additionally, an e-mail to Mr. Feist on March 15, 2007, advised him that Ms. Sidebottom was "involved with the Board of Regents meeting the entire day of Wednesday." In her view, these statements, "in light of the several telephone conversations, specifically detail the reasons for the delay and demonstrate an attempt to promptly satisfy" the request. Although "Mr. Feist never objected and in conversations expressed it was not a problem[,]" 5 and NKU appears to have relied in good faith on the conversations with Mr. Feist, 6 NKU nevertheless violated KRS 61.880(1) and KRS 61.872(5).
To begin, the somewhat contentious nature of this appeal has no bearing on the outcome. As consistently recognized by this office:
In rendering a decision under the Open Records Act, the Attorney General is not concerned with "heroes and villains." Our review is limited to the legal and factual issues with which we are presented. Our decisions reflect a reasoned and objective resolution of these issues. It is our statutory duty to enforce the rights and obligations of the parties in an open records dispute, not to malign or praise those parties. In the final analysis, we assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his request, and from the official custodian in providing the records which satisfy the request.
93-ORD-15, p. 6; See also 05-ORD-099; 96-ORD-185. To summarize, our review is confined to issues arising under the Open Records Act. 7
As a public agency, NKU must comply with procedural and substantive provisions of the Open Records Act regardless of the requester's identity or his purpose in requesting access. More specifically, KRS 61.880(1) contains the procedural guidelines which a public agency must comply with in responding to requests submitted under the Open Records Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In applying this provision, the Attorney General has consistently 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). Contrary to [U of L's] apparent belief, the 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 the 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 82-300, 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 the 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. Noticeably absent from the initial response by NKU are both of these mandatory elements. To this extent, NKU violated KRS 61.872(5).
Here, Ms. Sidebottom's assistant (Cathy) responded to Mr. Feist's request dated March 7, 2007 (4:11 p.m.), but received on March 8, 2007, via e-mail on March 9, 2007 (in a timely manner), confirming her telephone conversation with Mr. Feist and further advising that Ms. Sidebottom would meet "with the Human Resource Officer on Monday, March 12," regarding his request, as reflected by the record; NKU did not violate KRS 61.880(1) in so doing. Having received no additional response from NKU, Mr. Feist sent another e-mail to Cathy on March 14, 2007, after business hours (5:31 p.m.), inquiring as to the status of his request. Upon receipt, Cathy apologized for the delay and explained that Ms. Sidebottom was "tied up with the Board of Regents meeting the entire day on Wednesday." 8 To the extent NKU relies upon this meeting and the absence of "several of the record custodians, " 9 the response of NKU was deficient from a procedural standpoint.
In general, a public agency cannot postpone or delay the statutory deadline codified at KRS 61.880(1). "The burden on the agency to respond within three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5)." 02-ORD-165, p. 3. Unless the person to whom the request is directed does not have custody or control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. Id., citing 93-ORD-134. If, on the other hand, any of those conditions exist, the agency must " immediately so notify" the requester, and designate a place, time, and date for inspection "not to exceed" three days from receipt of the request, " 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. " KRS 61.872(5) (Emphasis added); 02-ORD-165. In other words, KRS 61.872(5) dictates that "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 (Emphasis added).
Although NKU belatedly complied with this provision, and the delay was apparently unintentional, NKU is required, as a public agency, to have a mechanism in place to ensure the timely receipt and efficient processing of requests submitted pursuant to the Open Records Act. While this office appreciates the somewhat unique circumstances, a "public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act. " 02-ORD-165, p. 3. In the event that the official records custodian is absent, "an individual should [be] appointed as acting custodian to respond to open records requests in a timely fashion." 94-ORD-86, p. 4; 02-ORD-165, p. 3 ("If the records custodian goes on vacation, or is unable to attend to his duties because of illness, or an accident, the agency is obligated to designate another person to review and handle open records requests in the absence of the regular custodian of the records"). See also 96-ORD-185. Neither the press of business nor the absence of the official custodian justifies a delay in providing access to public records. 02-ORD-165, p. 3. "It is incumbent on [NKU], as it is on any public agency, to make proper provision for the uninterrupted processing of open records requests." 01-ORD-140, p. 6. Any other interpretation of the Open Records Act would be "clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the [Act],"
Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, Inc., Ky., 834 S.W.2d 681, 682 (1992), and the recognition that "the value of information is partly a function of time." Fiduccia, supra, at 1041. As repeatedly observed by the Attorney General, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 03-ORD-125, p. 5.
Turning to the substantive issue presented, this office affirms the denial by NKU as to application materials of unsuccessful applicants for the specified position, as well as other documentation generated by the Hiring Committee members, applicants or personnel during the interview and selection process, on the basis of KRS 61.878(1)(a). In our view, 04-ORD-003 and 00-ORD-90 are controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. See 01-ORD-88 (this office finds no error in the agency's refusal to honor the request for applications, questionnaire packets, and evaluations relating to unsuccessful applicants for the position for which the requester also applied); 97-ORD-72; 96-ORD-1 and 95-ORD-38. Because the instant appeal presents no reason to depart from this line of decisions, the same result necessarily follows. To summarize, the interest of the public in ensuring that NKU has the ability to attract the most qualified applicants for the position is more compelling than its interest in records concerning unsuccessful applicants, and the privacy interests of the unsuccessful applicants are paramount to both. Accordingly, NKU was not obligated to disclose any of the records at issue aside from those relating to him 10 (assuming that any exist aside from those already provided). 11
On appeal, Mr. Feist alleges that NKU has failed "to conspicuously post and make public the [U]niversity's written Open Records Policies and Records Custodian. " In addressing "Mr. Feist's complaint that the Open Records policy is not accessible online," Ms. Sidebottom correctly argues that NKU only has a duty to display "the rules and regulations in a prominent location accessible to the public. KRS 61.876(2); See 05-ORD-281." At the time of Mr. Feist's visit to campus, the rules and regulations "were clearly and conspicuously posted outside the Human Resources offices. Information regarding personal privacy and open records requests can also be found posted on the University's Office of Records Management website (see copy attached)." 12 While Mr. Feist is presumably correct in asserting that said page "is for internal use," NKU is nevertheless in compliance with KRS 61.876(1) and (2) if the rules and regulations contain the requisite elements 13 and have been displayed "in a prominent location accessible to the public." As long recognized by the Attorney General, KRS 61.876(1) and (2) are:
aimed at insuring that each agency will educate the public on its particular policies and practices relative to open records. Simply stated, the rules and regulations contemplated by KRS 61.876 are a "how-to" for persons who wish to submit an open records request. [Footnote omitted]. . . . [Public agencies] must adopt rules and regulations pertaining to [their] open records polic[ies], or [they] may adapt the uniform rules and regulations promulgated by the Finance and Administration Cabinet to [their] particular needs. [They] must post these rules and regulations in a prominent location accessible to the public with the goal of broadly disseminating them. . . .
94-ORD-12, pp. 6-8; 98-ORD-200. Early on, this office held that KRS 61.876 requires each public agency to adopt rules pertaining to public records; failure to comply is a violation of the Open Records Act. OAG 78-340. Because the broadest possible dissemination of rules and regulations concerning access to public records is mandated by both the letter and the spirit of the Open Records Act, this office urges NKU to review its policy relative to KRS 61.876 in order to ensure conformity. 14
Richard FeistP.O. Box 443Burlington, KY 41005
Cathy J. DewberryAssistant to the Vice PresidentLegal Affairs and General CounselLucas Administrative Center 824Nunn DriveHighland Heights, KY 41099
Sara Sidebottom, Vice PresidentLegal Affairs and General CounselLucas Administrative Center 824Nunn DriveHighland Heights, KY 41099
Footnotes
Footnotes
1 According to KRS 61.872(2):
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
(Emphasis added). Although Mr. Feist admittedly did not comply with this procedural requirement, NKU waived this argument in responding electronically to his request and continuing to communicate with him in that manner.
2 In the interest of brevity, this office does not endeavor to summarize the communication between the parties which culminated in this appeal, nor can this office recount in its entirety the lengthy correspondence of record given the time constraints imposed upon the Attorney General by KRS 61.880(2)(a); however, this office has carefully reviewed the entire record and given due consideration to all relevant facts as well as the legal arguments raised by the parties in rendering a decision.
3 Because Ms. Sidebottom addresses each of the arguments raised by Mr. Feist for "the sake of clarity," excerpts are included to provide necessary context. For purposes of review, it suffices to say that Mr. Feist either has a differing recollection or an opposing view on each point.
4 Mr. Feist expressly disputes this assertion.
5 In reply, Mr. Feist clarifies that Ms. Sidebottom did not contact him after March 9, 2007; instead, he "had to pursue her." Although he "was willing to accommodate her provided she supply [him]e a satisfactory written explanation as to why she required more time[,]" Ms. Sidebottom "failed to do so."
6 Any error appears to have resulted from a misinterpretation of the applicable statutory provisions and/or miscommunication.
7 With regard to factual disputes between a requester and a public agency, the Attorney General has likewise repeatedly recognized:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [Mr. Moore] asked to inspect, and that copies of some records have been provided. Hopefully, any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-061, p. 2, citing OAG 89-81, p. 3; See also 03-ORD-204.
8 In replying to Ms. Sidebottom's response, Mr. Feist challenges the assertion that he received the records in a prompt manner. Mr. Feist was not informed that NKU's response was incomplete until he arrived at NKU "on March 20th and received the cover letter from Kris Ellena. Only on March 23, 2007, did the [U]niversity claim [it] had fully complied with [his] request; twelve working days and ten total documents later." According to Ms. Sidebottom, the records "arrived after Mr. Feist's early morning visit to inspect his records." Upon reviewing the records of the Committee, those to which Mr. Feist was "legally entitled" were immediately mailed to his address "without a fee for copying or postage."By letter dated March 19, 2007, Ms. Ellena, Graduate Assistant, advised Mr. Feist NKU could only provide "the application, resume and cover letter for the candidate hired. " In addition, NKU redacted the personal information contained within those documents in accordance with KRS 61.878(1)(a). On the same basis, NKU correctly withheld applications from unsuccessful applicants, citing KRS 61.878(1)(i) in the alternative; NKU further relied upon prior decisions of this office and case law. Accordingly, NKU ultimately complied with KRS 61.880(1) by citing the applicable exception and briefly explaining how it applies.
9 According to Mr. Feist, a voice mail from Ms. Sidebottom indicated that "necessary parties she needed to contact were unavailable due to Spring Break." See 01-ORD-94.
10 Under the express terms of KRS 61.878(3), Mr. Feist is entitled "to inspect and copy any record including preliminary and other supporting documentation that relates to him."
11 In addressing Mr. Feist's request for Hiring Committee notes and correspondence, NKU asserts that Mr. Feist was provided with all documents to which he is entitled, citing KRS 61.878(1)(i) and (j) in support of this position without elaboration. With regard to application of the aforementioned exceptions, this office refers the parties to 05-ORD-144 for the relevant analysis; however, further elaboration is unnecessary given our determination relative to KRS 61.878(1)(a) and the fact no additional records exist. While the lack of documentation seems unusual, NKU clarifies that "a significant amount of their communication was done orally"; therefore, NKU "could not provide any written correspondence. " In addition, Mr. Feist's belief regarding current protocol is apparently incorrect. According to Ms. Sidebottom, NKU "has converted to a paperless system for applications and the only recommendations submission is the Affirmative Action form," which NKU provided to Mr. Feist. Because the Hiring Committee "communicated the job offer orally, and does not keep copies of the rejection letters[,]" nor is there a duty to create a record which does not exist, NKU reiterates that Mr. Feist received the records in question to the extent such records exist.
As long recognized by the Attorney General, a public agency cannot produce for inspection or copying records which do not exist, nor is the Attorney General empowered to order the creation of records; 07-ORD-023, a copy of which is attached hereto and incorporated by reference, is controlling on this issue. Likewise, this office has long recognized that "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." Id., p. 8, citing 04-ORD-216, p. 3.
12 Mr. Feist "made web searches, checked with the [U]niversity's Library, Record Custodian and Archives, made numerous [online] directory searches and came up with" [a page identified as (K)] which is attached to his appeal. While Mr. Feist "looked for postings" during his campus visit, he "did not see any."
13 In relevant part, KRS 61.876 provides:
(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but not be limited to:
(a) The principal office of the public agency and its regular office hours;
(b) The title and address of the official custodian of the public agency's records;
(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies;
(d) The procedures to be followed in requesting public records.
(2) Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public.
Neither the document attached to Mr. Feist's appeal nor the document included with NKU's supplemental response contains all of the requisite elements.
14 Although Mr. Feist believes that NKU "has been deceitful throughout this process and has fraudulently withheld records" to which he is entitled "so as to deny [him] employment," such issues are simply not justiciable in this forum.