Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision The issue presented in this appeal is whether the University of Louisville ("University") violated the Open Records Act in its disposition of Kate Howard's request for employment-related records. For the reasons stated below, we find that the University impermissibly delayed its initial response and then failed to state the date when the records would be provided, or specify why record production would be delayed. On appeal, University provided records for all but one request, which did not precisely describe the records being requested.
By letter dated August 14, 2017, and sent via email, Kate Howard, Kentucky Center for Investigative Reporting, asked the University for the following records:
Any/all pay stubs for Keith Inman since July 1, 2017;
Any/all contracts or employment letters governing his employment;
Any/all agreements related to his departure, including but not limited to a resignation letter and any financial settlements or payout details;
Any/all Agreements for any other staffer receiving pay related to employment termination, excluding routine vacation time payouts.
Having not received a response from the University, Ms. Howard appealed to our office by letter faxed on August 25, 2017. Sherri Pawson, Senior Compliance Officer, responded to the appeal on behalf of the University by letter dated September 1, 2017. The University explained that the request from Ms. Howard was received while Ms. Pawson was on vacation. The email 1 request for records was attached to an email on a different subject, and Ms. Pawson did not realize that the attachment was a request for records until she received an email from Ms. Howard stating that the request would be appealed. The University provided some of the requested records to Ms. Howard on August 25, and sent additional records on August 31, and September 1. In a September 1 email to Ms. Howard, the University explained that it needed additional information on the request for records involving University staffers other than Mr. Inman:
Regarding your question re: Any/all Agreements for any other staffer receiving pay related to employment termination, excluding routine vacation time payouts.
Is there a particular employee you have in mind? Without something more specific I don't know of any way to identify responsive records. I don't know of any way to search the payroll system to spit out such information based on the information you've provided. Please provide additional information and I will be able to contact the appropriate office/officials to inquire as to any records.
As of September 6, 2017, Ms. Howard advised this office that this request was the only one of her requests that had not been fulfilled.
Analysis : We first address whether the University violated the Act in not providing records regarding employees who may have received pay related to employment termination. KRS 61.872(3)(a) and (b) are relevant to our analysis, and state:
A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
The Open Records Act thus contemplates records access by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. A requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. A requester whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of records, without first inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52; 96-ORD-186; 97-ORD-46; 03-ORD-67.
From the record, it appears that Ms. Howard has her principal place of business in Jefferson County, and could have exercised her right to inspect the records prior to requesting copies of the records. 2 As Ms. Howard requested copies without first inspecting the records, it was necessary for her to satisfy the additional burden required by KRS 61.872(3)(b). Whereas KRS 61.872(2) requires, generally, that the requester "describe" the records which he wishes to access by on-site inspection, KRS 61.872(3)(b) requires the requester to " precisely describe[]" the records which he wishes to access by mail.
Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008). A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside University Dictionary 926 (1988); "strictly defined; accurately stated; definite, " Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963). A requester satisfies the second requirement of KRS 61.872(3)(b) if she describes in definite, specific, and unequivocal terms the records she wishes to access by mail. 97-ORD-46, p. 3; 03-ORD-067. This standard of precise description for requesting records by mail is generally not met by what has been described as the "open-ended any-and-all-records-that-relate type of request." 08-ORD-058. Such a request runs the risk of being "so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass." 96-ORD-101. Furthermore, "a request for any and all records which contain a name, a term, or a phrase is not a properly framed open records request, and . . . generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records. " 99-ORD-14.
In 00-ORD-79, we found that a request for copies of "[a]ny and all records related to the granting of easements by the City of Indian Hills to its property owners for the purpose of connecting to any MSD sewer line . . . from January 1, 1990 to January 1, 1999" was properly denied for lack of a precise description:
[The requester] provided information that the number of properties that received easements was small and limited the timeframe of his records request. However, he did not identify the records that he wanted copied in definite, specific, and unequivocal terms. Unless he can describe the records he seeks with precision, the City is not obligated to search through its records for "any and all" records that may relate to his request.
In this instance, Ms. Howard's request for "Any/All agreements for any other staffer receiving pay related to employment termination, excluding routine vacation time payouts" is similar in nature to the request made in 00-ORD-79. The request is not definite, specific or unequivocal. The request does not specify a time frame, any specific staffer, or any specific type of agreement that would assist in identifying the records being requested. As Ms. Howard's request does not describe the requested records in definite, specific, and unequivocal terms, the records were not "readily available" in the agency, pursuant to KRS 61.872(3)(b), and the University did not violate the Open Records Act by requesting a more definite description of the records sought.
Another issue is the University's failure to timely answer Ms. Howard's requests. Ms. Pawson's response of August 25, 2017, states that "I respond on behalf of the university to all requests made of UofL employees under the Kentucky Open Records Act . . ." Her response of September 1 to the appeal stated that she received Ms. Howard's request while she was on vacation. To the extent that the University failed to issue a written response to Ms. Howard's request within three business days notifying her of its decision as to whether it would comply with her request, the University violated KRS 61.880(1). The Attorney General has recognized that in the event the official 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; see also 96-ORD-185, p. 3 (holding that "the Law presumes the appointment of a records custodian 'who is responsible for the maintenance, care and keeping of public records . . . ,' [] as well as the timely processing of open records requests, and in his absence, the appointment of an alternate to fulfill his duties."). The three day statutory response time is not tolled by the absence of the agency's records custodian. It is incumbent on the University to make proper provision for the uninterrupted processing of open records requests when Ms. Pawson is unavailable to respond to such requests.
Finally, Ms. Pawson's responses, once she returned from vacation, also did not satisfy the University's duty under KRS 61.872(5), which requires:
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.) The University did not assert that the records were "in active use, in storage, or not otherwise available[,]" nor did it provide the "earliest date on which the public records [would] be available for inspection. " As the University did not specify why the records were not immediately available, and no date certain was given as to when the records would be provided, the University failed to satisfy the conditions of 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 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 Although not raised as a defense by the University, KRS 61.872(2) requires that requests for records "be hand delivered, mailed, or sent via facsimile to the public agency." This office has long recognized that the requester and the public agency "may enter into an express agreement, or consent by a clear course of conduct to transact their open records business by email." See 99-ORD-129; 03-ORD-162; 07-ORD-105; 09-ORD-224. While no such agreement existed between Ms. Howard and the University, the University implicitly waived the delivery requirement in responding to Ms. Pawson's request via e-mail without objection. If the University does not wish to accept requests made by e-mail it "should notify requesters, like [Ms. Howard], that it does not accept emailed requests and direct [them] to KRS 61.872(2) to ensure proper submission of subsequent open records requests." 12-ORD-036, p. 2.
2 Ms. Howard's email request stated, in part, "Please provide me these records electronically, if possible. Please provide me the documents as they become available." She did not ask to first inspect the records in person, before being provided the records.