Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Northern Kentucky University ("NKU") violated the Open Records Act in its disposition of two requests made on the evening of March 3, 2010, by Jesse Call, reporter for independent student newspaper The Northerner, to view certain electronic mail messages. For the reasons that follow, we conclude that NKU's response substantively complied with the Act but constituted a procedural violation in part.
Mr. Call's first request was sent by e-mail 1 to Sara Sidebottom and Cathy Dewberry, and sought "access to and a copy of: electronic mail messages between Lori Southwood and Miya Simpson and between Lori Southwood and Blanche Pringle-Smith for the period of December 1, 2009 to January 31, 2010." Only a few minutes after his first e-mail, Mr. Call sent a second request in the same manner to the same recipients, seeking "access to and a copy of: electronic mail messages between Miya Simpson and Blanche Pringle-Smith for the period of December 1, 2009 to January 31, 2010." On March 4, 2010, Associate Counsel Jay T. Manire responded by e-mail:
Please contact me at your earliest convenience to further discuss your most recent 2 open records requests. To the extent there are any emails between the individuals you've listed that are related to Mr. Griffin or Ms. Pringle-Smith's employment situation, you are not entitled to a copy. As previously explained, these are considered preliminary drafts, notes or correspondence with private individuals where there has been no final agency action.
Mr. Call replied that same day that "the request was not limited to emails related to anyone's 'employment situation.'" To this Mr. Manire stated:
Allow me to simplify this for you. You will not be given any emails, documents, drafts, notes, memos, files, correspondence or other records that discuss Mr. Griffin's or Ms. Pringle-Smith's employment. IF there are other emails between the individuals you've listed, and they are not otherwise exempt under the law, you will receive a copy from our office by next Tuesday.
(Emphasis in original.) 3
On March 13, Mr. Call initiated this appeal after having heard nothing further from NKU. That same day, Mr. Manire sent an e-mail to Mr. Call stating as follows:
After further review of these individuals' email accounts, please be advised that I found no records that would be subject to public inspection at this time. As previously stated, the few emails that do exist are considered preliminary drafts, notes or correspondence that are material to and part of a pending grievance review. Upon final agency action these material [ sic ] may be released.
In his appeal, Mr. Call does not contest the assertion that the only existing e-mails have been made "part of a pending grievance review." Rather, he contends that because they are "previously existent University record[s]" the e-mails cannot become inaccessible by virtue of their becoming part of an ongoing internal investigation. In his response to this appeal, received on March 23, 2010, Mr. Manire cites KRS 61.878(1)(i) and (j) and states that "the electronic mail messages, [which] are now part of the grievance investigation records, are not subject to disclosure until there has been a final agency action. "
For the reasons stated in 10-ORD-065, we agree with NKU that e-mails directly pertinent to a pending investigation may be exempted from disclosure during the pendency of the investigation under KRS 61.878(1)(i) and (j) notwithstanding the fact that they preexisted the investigation. As a letter of complaint or grievance can become exempt under the "preliminary" exceptions once an investigation is initiated, so can certain directly pertinent agency communications be brought under the scope of those exceptions before final agency action is taken. Since the facts and the applicable law are the same as in the present appeal, we hereby adopt 10-ORD-065 as the basis for our decision that NKU did not substantively violate the Open Records Act in this matter. 4
Procedurally, however, NKU committed certain violations in responding to Mr. Call's requests. Pursuant to KRS 61.880(1), the initial e-mail response should have stated the specific statutory exceptions on which NKU premised its denial. Although this procedural violation was somewhat mitigated by the fact that Mr. Call had other requests pending with NKU and Mr. Manire made indirect reference to his previous citation of KRS 61.878(1)(i) and (j) by using the phrase "As previously explained," the statutory exceptions should have been cited directly in response to Mr. Call's new requests. Additionally, although the follow-up e-mail on March 4 indicated that a determination of whether any non-exempt responsive e-mails existed would be made by March 9, there was no further communication to Mr. Call until March 13. Pursuant to KRS 61.880(1), a final decision on Mr. Call's requests should have been communicated to him within three business days, or a detailed explanation of the cause for any further delay should have been supplied under KRS 61.872(5) .
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.
Jesse CallSara L. Sidebottom, Esq.Jay T. Manire, Esq.
Footnotes
Footnotes
1 Procedurally speaking, requests by e-mail need not be honored under the Open Records Act. See 09-ORD-190 (citing 09-ORD-116). By its responses, however, NKU has waived the delivery requirement of KRS 61.872(2) and we therefore review the substantive merits of its disposition.
2 Only days earlier, Mr. Call had made other open records requests relating to grievances filed by Michael Griffin and Blanche Pringle-Smith. The disposition of those requests was treated in 10-ORD-065, a copy of which is attached hereto for reference.
3 The following Tuesday, March 9, was presumably the third business day from actual receipt of Mr. Call's requests, since they were made late in the evening of March 3, 2010.
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4 Mr. Call raises the possibility that public agencies could "declare investigations in order to delay the public inspection of certain records it might find embarrassing." Although such behavior by public agencies undoubtedly could occur, we cannot assume that any hypothetical future investigations would be undertaken in bad faith. More pertinently, there is no indication that the present investigation, which was initiated by a grievance, is conducted in bad faith.
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