Opinion
Opinion By: Andy Beshear,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 Kentucky Open Records Act in its disposition of Kate Howard's May 8, 2017, request for "[a]ny/all conflict of interest forms and attachments for U of L Athletics Association board members filed since 1/1/2016." For the reasons that follow, we find that the University did not make a timely written disposition of the request, and further failed to meet its burden of proof as to the omissions and redactions made.
Records custodian Sherri Pawson replied to Ms. Howard's request by e-mail on May 8, 2017: "No need to fax. I have jury duty so I'm working while I'm waiting, just not in the office. I will formally acknowledge this tomorrow." On May 22, 2017, Ms. Howard followed up her request to Ms. Pawson with an e-mail stating: "Hi Sherri -- it has been 10 business days since this request. I do not appear to have a response from you. Can you please address?" Having still received no response, Ms. Howard initiated this appeal on May 24, 2017, advising: "I have not received records, an explanation of delay, or even a response . . . 12 business days later."
On June 1, 2017, Ms. Pawson responded to the appeal on behalf of the University. She states as follows:
I was serving jury duty at the time Ms. Howard's request was received on May 8th but via email I informally acknowledged receipt of the request that same day. I then began a search for the responsive documents. Ms. Howard followed up one week later and at that time I expected to quickly finish the review--these documents required critical examination as they involve possible conflicts of interest of students, employees and community members that serve on the university's board of trustees. These matters deal with personal and private business relationships. This process took additional time beyond what would be expected for routine business records. Ultimately I responded and provided the records on May 31st. I was deficient in not providing updates as to the progress but as this request has been fulfilled and all responsive records provided the matter should not be considered.
Ms. Pawson's assertion that "all responsive records [have been] provided" is contradicted by her response to Ms. Howard on the previous day:
I have identified the responsive records and upon receipt of payment of the attached invoice I will provide you copies of the records. Please note I redacted some information relying on KRS 61.878(1)(a) that exempts "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy;" and FERPA: The federal Family Educational Rights and Privacy Act (FERPA) prohibits the release of student education records without a signed release from the student. Let me know if you have specific questions.
(Emphasis added.)
KRS 61.880(1) requires that a public agency make a disposition of a request for public records within three days, excluding weekends and legal holidays. Pursuant to KRS 61.872(5):
If the public record is in active use, in storage or not otherwise available , the official custodian shall immediately notify the applicant and shall 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.
(Emphasis added.) By its own admission, the University never gave a response to Ms. Howard's request, beyond a bare acknowledgment of receipt, until after the filing of this appeal. Its eventual response on May 31, 2017, cannot be said to have complied with KRS 61.872(5) in any way, since no indication was given that the requested records were "in active use, in storage, or not otherwise available." Only "vague and fragmentary information" was given ( cf. 16-ORD-205) relating to "business relationships" and a need for "critical examination. " We accordingly find that the University violated the Open Records Act in this regard.
Moreover, the University's response does not articulate any privacy interest; nor does it explain specifically what "information" was redacted for privacy reasons, or what documents were withheld as "education records," from the materials it produced. This makes it impossible to evaluate its arguments under FERPA and KRS 61.878(1)(a), and constitutes a further violation of the Open Records Act, inasmuch as KRS 61.880(1) provides:
Each public agency . . . shall notify in writing the person making the request . . . 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.
(Emphasis added.) A public agency has the burden of proof in sustaining its action. KRS 61.880(2)(c). As to the unspecified redactions made and documents withheld, we must conclude that this burden has not been met. 17-ORD-101. Accordingly, we find that the disposition of this request was both procedurally and substantively in violation of the Act.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.