U of L violated Open Records Act by failing to adequately respond to Louisville reporter's request

The University of Louisville violated the Open Records Act for its actions in responding to a request by the Kentucky Center for Investigative Reporting, the attorney general’s office said in an August 27 opinion.

Center for Investigative Reporting reporter Kristina Goetz appealed to the attorney general’s office after more than a month of seeking records from U of L relating to the university’s contract and correspondence with private auditing firm Strothman & Co., according to background information in the opinion.

As a procedural matter, the attorney general’s office said the university had violated the Open Records Act by failing to respond to Goetz’s requests within three business days.

The university also violated the Open Records Act by not providing sufficient information about a document withheld as “preliminary” because it prevented Goetz from being able to dispute the characterization of that document, the opinion stated. 

The attorney general’s office considered whether the requested report was an audit or a consulting report.

Explaining that the nature and purpose of a record determines whether it is a public record, the attorney general’s office found that the report was a preliminary document until it was incorporated into final agency action and that “U of L did not substantively violate the Open Records Act in withholding the report prior to its adoption as a final agency action.”

Yet, since a copy of the report had been provided to Goetz, her request for it was moot. (Her request relating to other documents she had received was also determined to be moot.)

U of L argued that Goetz's request for the correspondence related to the report was over broad. However, the attorney general's office found her request was limited to specific documents — those relating to the report prepared by the private company for U of L; a specific period — Fall 2013 to Fall 2014; and a specific subject — the report.

The university also argued that complying with the request would create an unreasonable burden, but the attorney general’s office said the search for the corresponding documents need not be exhaustive or a fishing expedition. Instead, the university is “required to make a reasonable search of persons who are likely to have responsive documents.”

By not making such a search, U of L violated the Open Records Act, the opinion stated, and now 

“U of L is required to provide not only any preliminary documents that were expressly incorporated into the report, but any documents that formed the basis of the final agency action.”

A timeline of Goetz’s requests and U of L’s responses, as outlined in the attorney general opinion, is as follows:

• April 21, 2014: Goetz submitted two open records requests by email to U of L. One requested documents, including the contract for and all correspondence and other documentation regarding the private auditing firm charged with conducting a comprehensive audit of U of L. The other requested the findings, including any drafts, of the recent comprehensive audit for the university.
• April 28, 2014: Goetz sent a follow-up email to U of L stating that she had not received a formal, written response acknowledging receipt of her requests nor had she received a timetable for when the requests would be filed.
• April 29, 2014: U of L responded to both requests and said that the university and its affiliated corporations are audited annually. The response also said that the university had “'not identified any records regarding a specific audit outside the regular audit process.'”
•  April 30, 2014: Goetz sent an email that clarified her requests. She specified that she wanted documentation regarding the report produced by Strothman & Co. and any payment information from U of L to the company. She also requested documents regarding the scope of the company’s work, intent and results, including “‘drafts of the report, any and all material that went into its production and any correspondence between U of L and Strothman & Company regarding that work.”
• May 5, 2014: Goetz sent an email to make sure that her email clarifying her request had been received.
• May 6, 2014: U of L responded to Goetz and stated that the appropriate university officials had been asked to identify all responsive records and to send them in for review.
• May 15, 2014: Goetz emailed U of L stating that the university had failed to provide her with documents responsive to her request early in the week as it had promised. She requested an update on the when the records would be ready for inspection, and U of L responded that it was still working to determine what records existed for the request. The university promised to contact Goetz once the records had been reviewed.
• May 23, 2014: Goetz sent another follow-up email and asked that the university either produce the documents or deny her request by the end of business May 27, 2014.
• May 27, 2014: U of L responded, apologized for the continued delay and said it was still working to determine what records were releasable.
• May 29, 2014: The university responded to Goetz’s request. As to the contract and payment information, the university would provide copies of the records upon receipt of payment of an invoice. The university said an additional document responsive to Goetz’s request was identified but claimed the document was exempt from release because it was a draft. The university denied the rest of Goetz’s request, saying that it was “‘technically deficient due to a failure to identify with some reasonable degree of specificity the documents [she] sought to review or the individuals whose communications [she] sought.’”’
•  June 6, 2014: Goetz appealed to the attorney general’s office, raising several issues. Goetz said the university had initially denied that the contract existed, despite the proposal from Strothman & Co. stating on its cover page “‘special comprehensive financial examination and audit.’” Additionally, the university’s partial denial on the basis of the document being preliminary in nature did not give her sufficient information to make an appeal. Goetz said that she believed the document being withheld was the report itself, though the university gave no indication of when it would become final. She also questioned how the report could be a draft when “‘the university is paying the company to help implement its recommendations.” Finally, Goetz disputed U of L’s claims that her request was not specific enough.
•  June 11, 2014: Goetz submitted copies of several documents to the attorney general’s office, including an the initial personal services contract.
•  June 19, 2014: U of L responded to the appeal, and it said that the complainant recognized that the university had granted its request to review the contract. Concerning the report, the university acknowledged that “‘final audit reports must be disclosed under the Open Records Act.’” However, the university argued that it was still working with the private company “‘to finalize the analysis being performed’” and that investigative reports are protected from disclosure until “‘they are adopted and made part of a final agency action.’” The university claimed that correspondence relating to preliminary drafts was also protected and that Goetz’s request for correspondence regarding the auditing firm was overly broad.
• June 27, 2014: The attorney general’s office requested additional information from U of L regarding the challenges it faced “in responding to the request, whether the report was presented to the Board of Trustees or individual trustees, and what action was necessary to finalize the report.”
• July 18, 2014: U of L responded to the attorney general’s office. As to challenges, U of L said locating information for all of its employees or students was “‘simply over-broad and burdensome.’” Concerning the presentation of the report, the university said the draft report had not been reported to the Board in May 2014, but a draft of the consulting report had been presented to the Audit Committee, which included certain members of the board, in April 2014. The university attached a copy of the final report. U of L said “‘the final agency action necessary to make the consulting report subject to the open records laws’” had occurred.
• August 27, 2014: The attorney general’s office released an opinion regarding the matter.