Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Louisville violated the Open Records Act in the disposition of four requests made by Christopher Grande. All four dispositions were appealed to the Attorney General on October 28, 2013. For the reasons that follow, we find that the University failed in each case to make a timely response pursuant to KRS 61.880(1), but did not substantively violate the Act.
The requests at issue, directed to Senior Compliance Officer Sherri Pawson, 1 will be identified chronologically by date. Their content was as follows:
Request 1, August 20, 2012, designated by the University as ORR 12-418:
All documents or records related to the Minutes of those Faculty Meetings of the School of Urban and Public Affairs for the last six months of 2011, and 2012 (to date).
On September 16, 2012, Ms. Pawson responded: "I have identified records responsive to your request. Upon receipt of your check/payment for $ 1.80 I will mail you copies." It appears from the record that the records provided consisted of three (3) pages of e-mails, a one-page agenda, and five (5) pages of minutes, for a total of nine (9) pages. 2
Request 2, July 10, 2013, designated by the University as ORR 13-291:
Records of Faculty Meetings for the School/Department of Urban and Public Affairs for the inclusive time period between August 2012 and July 2013, to include but not limited [sic] to:
a) Agendas of such meetings that occur[r]ed; and
b) Minutes of such meetings that occur[r]ed; and
c) Communicatio[n]s related to the scheduling and/or announcement of such meetings that occur[r]ed; and
c) [sic] Notices for the day, time and location of such meetings that occur[r]ed.
(Emphasis in original.) On July 23, 2013, Ms. Pawson responded: "I have identified four documents responsive to your request. Upon receipt of payment of the attached invoice I will mail you copies of the records." From the record, it appears that Ms. Pawson provided four (4) pages of e-mails and three (3) pages of minutes, for a total of seven (7) pages; Mr. Grande was invoiced for $ 1.50. 3
Request 3, August 5, 2013, designated by the University as ORR 13-344:
Records of "UPA Ph.D. Program Faculty" Meetings for the School/Department of Urban and Public Affairs for the inclusive time period between August 2010 and July 2013
On August 17, 2013, Ms. Pawson responded: "I have identified one document and I am mailing you a copy of the minutes. " This document consisted of one page of minutes, and it does not appear that Mr. Grande was charged for the copy.
Request 4, August 5, 2013, designated by the University as ORR 13-345:
Records of Meetings of the "UPA Personnel Committee" of the Faculty of the School/Department of Urban and Public Affairs for the inclusive time period between August 2010 and July 2013
On August 15, 2013, Ms. Pawson responded:
Responding to your request, I have not identified any meeting minutes. As I understand it the output of this committee is annual merit reviews, periodic career reviews, tenure reviews, pre-tenure reviews, endowed chair reviews, and chair reviews. All of these categories of records are evaluative documents that contain opinions, recommendations and do not constitute final action. All such evaluations are preliminary documents and as such are protected from release under KRS 61.878(1)(i) and (j) authorizing the nondisclosure of "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency" and "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." In most cases the setting of a faculty member's salary is the final action in these matters.
? The exemption is "intended to protect the integrity of the agency's decision-making process by encouraging the free exchange of opinions and ideas, and to promote informed and frank discussion of matters of concern to the agency." 00-ORD-139, p. 6, citing 94-ORD-118 and 94-ORD-125. Also refer to 11-ORD 210 which supported the withholding of "letters of evaluation submitted by internal and external evaluators."
Therefore, no records were provided in response to the fourth request.
To his appeal Mr. Grande attaches 67 pages of internal University e-mails relating to the Urban and Public Affairs Ph.D. examination process, which he claims were provided to one Gregory Puccetti in response to two open records requests made by Mr. Puccetti but were not provided to him. Although Mr. Grande's appeal does not specify which of his four requests he believes should have resulted in his receiving these documents, it appears that the most nearly relevant is Request 3. That request, however, was only for "[r]ecords of 'UPA Ph.D. Program Faculty' Meetings." E-mails amongst the Ph.D. program faculty, even if they should make mention of a meeting, are not clearly within the scope of a request which simply asks for records of faculty meetings. Furthermore, it is not at all clear from the record that the University ever produced inconsistent responses to identical requests from Mr. Puccetti and Mr. Grande.
In correspondence dated November 19, 2013, from Mr. Grande's attorney, J. Fox DeMoisey, it is further alleged that "despite essentially requesting the very same records in [all four open records requests at issue], different responses and variable records were produced by Ms. Pawson at different times." We are unable to make sense of this allegation, since no two of the four requests at issue requested the same records. As for Mr. Grande's request "that the Office of the Attorney General undertake a broader evaluation and inspection of the Open Records Program [ sic ] at the University of Louisville," such an enterprise is not part of this office's function or jurisdiction under KRS 61.880(2) to determine whether a violation of the Open Records Act occurred.
It appears that the University provided all responsive records available as to requests 1, 2, and 3. In response to request 4, no records were provided because the only responsive items were "annual merit reviews, periodic career reviews, tenure reviews, pre-tenure reviews, endowed chair reviews, and chair reviews," which the University considers "evaluative documents."
We have, in the past, upheld the nondisclosure of employee performance evaluations and faculty tenure reviews in the absence of an "overriding public interest in disclosure. " 13-ORD-063. Those decisions, however, have been based on the privacy exception in KRS 61.878(1)(a), 4 not on the "preliminary records" exceptions in subsections (1)(i) and (j). See, e.g., 04-ORD-045; 94-ORD-108. In fact, we stated in 94-ORD-108 that "[i]f the University [of Kentucky had] relied exclusively on [the "preliminary records" exceptions] to authorize the withholding of [faculty] evaluation forms, the forms might well forfeit their exempt status, since they appear to have been adopted as the basis for the professor's salary increment." (Emphasis added.)
The same might equally be the case in the present appeal, as the University of Louisville did not explicitly cite the privacy exception in KRS 61.878(1)(a), and KRS 61.880(1) requires that an agency denying inspection "include a statement of the specific exception authorizing the withholding of the record." Nevertheless, the University did cite 11-ORD-210, a decision of this office premised entirely on KRS 61.878(1)(a), along with language from 11-ORD-039 to the effect that KRS 61.878(1)(a) extends to "[l]etters of evaluation submitted by internal and external evaluators." 5 Thus, while the failure to cite the privacy exception directly was a procedural violation of KRS 61.880(1), we do not disallow the rationale represented by the cited decisions. Therefore, under the KRS 61.878(1)(a) privacy analysis as applied in 13-ORD-163 (copy attached), we find no overriding public interest in disclosure that would supersede the recognized privacy interest in employee evaluations, and accordingly find no substantive violation of the Open Records Act.
Nevertheless, it is of concern that in none of these four cases did the University make a timely substantive response to the open records request pursuant to KRS 61.880(1), which requires that an agency "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." Although requests 3 and 4 were met with an acknowledgment of receipt within that time, those acknowledgments simply indicated that there would be further delay without specifying a reason.
Ms. Pawson, in correspondence dated November 6, 2013, states that "Mr. Grande has filed more than 380 open records requests" with the University, 179 of them during calendar year 2013. While we appreciate the difficulties that may be posed by a high volume of open records requests, the University has not made the argument that Mr. Grande's "repeated requests are intended to disrupt other essential functions of the public agency" within the meaning of KRS 61.872(6), but rather has continued to make efforts to comply with them. In the absence of any suggestion that the records were "in active use, in storage, or not otherwise available," as provided in KRS 61.872(5), or that any other circumstances made timely compliance with the request impossible, we must hold the University to the time frame of three business days, as mandated by KRS 61.880(1), and find a procedural violation of that subsection in all four cases.
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.
Distribution:
Dr. Christopher GrandeJ. Fox DeMoisey, Esq.Ms. Sherri PawsonAngela D. Koshewa, Esq.
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