Request By:
Matthew Smith
Joan Gates
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Northern Kentucky University (NKU) violated the Open Records Act by refusing to provide investigative records regarding sexual misconduct by NKU employees. NKU refused to provide some responsive records but, on appeal, determined that additional records can be produced with appropriate redactions based on exemptions allowed in the Open Records Act. Having agreed to provide the requested records with appropriate redactions and omissions, we find that NKU committed a procedural violation in its unilateral extensions of the earliest date by which it would produce the records. We also find that one set of withheld emails do not qualify for exemption under KRS 61.878(1)(a) or (k) and that withholding those emails constituted a violation of the Open Records Act.
On October 19, 2016, Mathew Smith made an Open Records request to "obtain all investigative records for all Title IX 1 investigations into sexual misconduct allegations levied against university employees in the past five years." NKU initially responded on October 24, 2016, stating that the responsive records were being gathered and that they would be provided by October 28, 2016. However, on October 27, 2016, NKU extended the deadline to November 4, 2016, "in order to gather additional archived files potentially responsive to this request." On November 4, 2016, NKU provided records reflecting the "final action" in four investigations but stated that the "investigative records" were exempt under KRS 61.878(1)(a) 2, (1)(i) 3 and (1)(j) 4, and federal privacy laws 5, incorporated through KRS 61.878(k) 6, as the basis for withholding student complaints. "The University cannot sufficiently 'de-identify' the complaint via redaction because, alone or in combination, the record and the information contained within are linked or linkable to specific students that likely would allow a reasonable person in the school community without personal knowledge of the relevant circumstances to identify the students with reasonable certainty." NKU advised that it was still gathering additional archived records and that those would be made available by November 22, 2016.
NKU subsequently reevaluated Mr. Smith's request and determined that he was requesting investigative records and not final actions, as NKU had initially interpreted the request. With that reevaluation of the request, NKU, on November 22, 2016, notified Mr. Smith that the investigative records were exempt from inspection pursuant to KRS 61.878(1)(i) and (j), and repeated the earlier statements regarding student complaints being exempt under federal laws and KRS 61.878(1)(k). "Therefore there are no records responsive to your request for 'all investigative records for all Title IX investigations into sexual misconduct allegations levied against university employees in the past five years.'" Mr. Smith appealed NKU's denial of his request, and NKU responded to the appeal on December 22, 2016.
In the letter of December 22, 2016, Joan Gates, Vice President and General Counsel, explained that NKU had to consider restrictions that federal laws such as the Violence Against Women Act and the Clery Act, place on the University for the protection of sexual misconduct survivors, and she explained the prohibition against disclosure of personally identifiable student information by the Family Educational Rights and Privacy Act (FERPA). Based upon further review of the records after Mr. Smith instituted this appeal, Ms. Gates determined that NKU could supplement its earlier responses with additional records, subject to limitations and redactions allowed or required by federal and state laws. Attached to Ms. Gates' letter was a "Table and Summary Description of Records" with summary descriptions 7 of records regarding seven complaints brought by employees against other NKU employees, and nine complaints by students against NKU employees.
Unable to resolve the issues on appeal based on NKU's responses to the request and appeal, this office requested additional documentation and copies of the records involved from NKU pursuant to the authority granted this office by KRS 61.880(2)(c) 8 for an in camera review. 9 The request recognized NKU's concerns about providing the records for the review, especially regarding FERPA restrictions. We agreed to accept redacted copies of the records for our review, but only to protect names and personally identifiable information of students. NKU subsequently provided the responsive records for our review.
NKU did not provide, nor did we request, a version of the responsive records to include the proposed redactions, and so we are not able to make a definitive determination as to whether the proposed redactions comply strictly with the exemptions referenced in the "Table and Summary Description of Records." Our review of the records generally comports with the summary descriptions of each complaint. Of the 16 (sixteen) complaint files, we question one instance, involving the withholding of emails between employees. In Item 1(a)(iii) regarding "[e]mployee allegations against B.A.," Ms. Gates described emails between two NKU employees as "consisting of the details of the alleged misconduct that is exempt pursuant to KRS 61.878(1)(a) and (k)." The records provided show that NKU email addresses were used in the exchanges between employees and that the emails were not work-related. In 06-ORD-184, this office examined a similar issue regarding nonwork-related emails and found:
Although we cannot disclose the specific content of the records, by virtue of KRS 61.880(2)(c) , we can generally describe them as conversational-type communications of a transitory nature. . . We reject the Cabinet's argument that because the disputed emails are personal, their disclosure would constitute a clearly unwarranted invasion of personal privacy within the contemplation of KRS 61.878(1)(a).
06-ORD-184, p.8. As in 06-ORD-184, the disputed emails here are personal, nonwork-related, conversational-type communications of a transitory nature, using NKU email addresses. We do not agree with NKU that their "disclosure would constitute a clearly unwarranted invasion of personal privacy within the contemplation of KRS 61.878(1)(a)." Moreover, while we acknowledge that disclosure of the emails "may cause inconvenience or embarrassment to public officials or others," 10 we cannot agree that the emails implicate privacy interests of sufficient weight to overcome the public's right to know how public agency employees are utilizing public resources. The public's interest in disclosure of records documenting use of public resources is generally greater than the privacy interests of public employees engaged in personal use of such resources. See 06-ORD-184, pp. 9-10. While we disagree with NKU that these emails may be withheld in their entirety, we acknowledge that the identity of the alleged victim of the misconduct may be withheld under KRS 61.878(1)(a), if NKU demonstrates that withholding the identity of the alleged victim outweighs the public's interest in disclosure of that identity.
NKU also labeled these emails as exempt under KRS 61.878(1)(k), which allows for exemption of "All public records or information the disclosure of which is prohibited by federal law or regulation. " NKU does not explain which federal law (s) or regulation (s) applies to these emails under KRS 61.878(1)(k), or how such federal law (s) would apply to the emails. Pursuant to KRS 61.880(1), NKU's denial of records must include "a brief explanation of how the exception applies to the record withheld. " Such explanation must "provide particular and detailed information" as opposed to being "limited and perfunctory."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). The summary description for the emails in Item 1(a)(iii), even in the context of our in camera review, did not provide the "particular and detailed information" necessary to prove that the email records should be withheld. KRS 61.880(2)(c) provides that the "burden of proof in sustaining the action shall rest with the agency" when the Attorney General reviews a public agency's denial of a request to inspect public records. NKU has not met its burden of proof in sustaining its proposed exemption of these email records and must provide them to Mr. Smith.
NKU has agreed to produce the records, subject to the redactions addressed in the Table and Summary Description of Records attached to Ms. Gates' letter of December 22, 2016. We expect NKU to provide the redacted records promptly after the issuance of this decision, in order to allow Mr. Smith sufficient time to review those records and, if necessary, appeal this decision.
We also find NKU's unilateral extension of the deadline for production of the records from October 28, 2016, to November 4, 2016, and then again to November 22, 2016, to be procedural violations of KRS 61.872(5) , which requires the public agency to "designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, 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. "
Finally, NKU requested that we determine Mr. Smith's request to be moot, as it will be providing redacted records. 40 KAR 1:030 Section 6 states, "If the 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." This office has previously determined that "unless all records identified in an open records request are released, not just those the agency deems nonexempt, the issue before the Attorney General is not moot. " 09-ORD-007, p.5. As NKU will be providing only redacted records, this appeal is not moot.
The parties herein may appeal this decision 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 must 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 Title IX is a federal civil rights act that prohibits sex discrimination in education, and, as relevant to this appeal, addresses sexual harassment, and sexual violence. See http://www.ncaa.org/about/resources/inclusion/title-ix-frequently-asked….
2 KRS 61.878(1)(a) exempts from the Open Records Act: "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."
3 KRS 61.878(1)(i) exempts from the Open Records Act: "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency."
4 KRS 61.878(1)(j) exempts from the Open Records Act: "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended."
5 NKU's letter cited the specific federal laws at issue: "Such information is confidential under FERPA, as well as corresponding federal provisions set out in the Clery Act, VAWA, and implementing regulations. See 20 U.S.C. § 1232g, 20 U.S.C. 1092(f)(8)(B)(v), 34 C.F.R. Part 99, and 34 C.F.R. § 668.46(b)(II)(iii)." NKU Letter, December 22, 2016, p. 5. "FERPA" is the Family Educational Rights and Privacy Act. "VAWA" is the Violence Against Women Act of 1994.
6 KRS 61.878(1)(k) exempts from the Open Records Act: "All public records or information the disclosure of which is prohibited by federal law or regulation."
7 The descriptions noted the types of records being withheld (notes, University policy, resignation letter, emails between employees, settlement agreements, etc.), and the statutory exception from the Open Records Act relied upon for withholding the records.
8 KRS 61.880(2)(c) states, in relevant part: "The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed."
9 The Attorney General's decision of whether to request additional documentation from the agency for substantiation, or a copy of the records involved, is discretionary and based on the facts specific to each appeal, such as the terms of the Open Records request and the specific exemptions claimed in the public agency's denial of records.
10 KRS 61.871.