Request By:
Mr. Carroll Burchett
Office of Vocational Rehabilitation
Department of Education
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL; Gerard R. Gerhard, Assistant Attorney General
By letter of November 27, 1989, Janice M. Parsons has appealed your partial denial of her request dated November 7, 1989, to inspect copies of various records of the Department of Education.
KRS 61.880(2) provides, in substance and in part, that the Attorney General shall, upon request of one whose request to inspect a public record has been denied, issue a written opinion stating whether the denying agency acted consistent with Open Records provisions.
SUFINDINGS IN BRIEF
The Department of Education, in denying part of a request to inspect public records, failed to act consistent with Open Records provisions by not citing a proper statutory basis for its denial, and in failing to briefly explain how a statutory provision it did cite, applied to a record that appeared to be withheld from inspection. The Department is not required to compile a listing to conform to a given request.
FACTUAL BACKGROUND
By request dated November 7, 1989, received by the Department of Education Office of Vocational Rehabilitation on November 8, 1989, Janice M. Parsons, a counselor at the Office of Vocational Rehabilitation at 3080 Harrodsburg Road, Lexington, Kentucky, asked to inspect certain records of the Department of Education, described as follows:
Copies of all my mid-year and annual reviews of my work performance evaluations since 1985, as requested from my Branch Manager, Gerald Gilpin, on 10-30-89. List of all Rehabilitation Counselors, Chief, who have been reallocated/ reclassified since 1984. A copy of the criteria used to determine why each of those positions should be reclassified/ reallocated.
You responded to Ms. Parsons by entry in the disposition section of the records request form, apparently on November 13, 1989, by stating:
Request for personal work performance evaluations since 1986 are enclosed. * A copy of the objective criteria utilized by Central Office's Statistical Section to evaluate quality and quantity of work over time is attached. Upon consultation with Department Legal Staff, the request for a listing of other counselors is denied. Basis for denial is predicated upon K.R.S. 61.876(1)(a)(h). [Sic.]
* * *
* The law requiring evaluations was not effective until 1986.
Ms. Parsons' appeal followed.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) provides, in substance and in part, that a public agency, upon receiving a request to inspect public records, shall determine within three working days whether to comply with the request. The agency is to notify the requester, within that three day period, of its decision.
If an agency denies, in whole or in part, inspection of a record, its response must include a statement of the specific exception, among those set forth in KRS 61.878, authorizing withholding of the record, together with a brief explanation of how the exception applies to the record withheld.
A copy of the written response denying inspection is to be forwarded immediately by the agency to the Attorney General. KRS 61.880(2).
Procedural Considerations
The Department of Education issued a timely written response to one who requested to inspect certain records held by the Department, a public agency subject to open records provisions. The response indicated that certain records were being furnished, while inspection of others was denied. A statutory basis for denial of inspection was cited, although the statute number cited, KRS 61.876(1)(a)(h)), presumably because of typographical error, was not a provision upon which denial of inspection of a public record could be properly based. No brief explanation was provided regarding how the statutory provision cited as a basis for denial applied to the records withheld. A copy of the Department's response, as required by statute, was promptly forwared to the Attorney General.
In failing to correctly identify a proper basis for denial of inspection of public records, and in failing to provide a brief explanation of how an exception, cited as basis for denying inspection, applied to records withheld, the Department of Education failed to act consistent with KRS 61.870 to 61.884.
Substantive Considerations
In response to a written request, the Department of Education furnished copies of certain employee evaluations and objective criteria used for certain worker performance evaluations. The responses appear to conform to the request.
Inspection of records appear to have been denied only regarding a listing of Rehabilitation Counselors, Chief, reallocated since 1984. The agency cited 61.876(1)(a)(h) [sic] as a basis for denying inspection of such list.
The undersigned understands, based upon a telephone conversation with Tim Hughes, of the Department of Education, Office of Vocational Rehabilitation, that a listing of Rehabilitation Counselors, Chief, reallocated since 1984, does not exist [Mr. Hughes explained that such position did not exist until perhaps 1986, but that, in any event, there is no listing of otherwise conforming reallocations/reclassifications].
Agencies are not required to compile a listing to conform to a given request. OAG 76-375; OAG 89-61. [Because a listing like that sought does not exist, we do not analyze the Department's denial based upon KRS 61.878(1)(a)(h) (sic), which probably is a reference to KRS 61.87 8 (1)(a) and (h).]
In future responses to requests to inspect public records, the Department of Education should accurately cite a particular exception from among those in KRS 61.878 , if it denies, or partially denies a request to inspect public records. A brief explanation should be given, as called for by KRS 61.880(1), regarding how a given exception cited as a basis for denial of inspection, applies to a record withheld from inspection.
If a record of which inspection is sought does not exist, the agency should specifically so indicate.
Janice M. Parsons, and the Department of Education, may have a right, pursuant to KRS 61.880(5), to appeal the findings of this opinion.
As required by statute, a copy of this opinion is being sent to Janice M. Parsons.