Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This is a companion appeal to 93-ORD-83 in which this Office held that the failure of the University of Kentucky to post rules and regulations governing access to public records under the Open Records Act constitutes a technical violation of the Act, and directed the University to comply with KRS 61.876. That decision was prompted by a complaint from Ms. Jerri Cockrel, Extension Specialist for Public Policy in the University's College of Agriculture. Ms. Cockrel complained that the University had violated the Open Records Act by failing to adopt rules and regulations in conformity with the Act, and to display a copy of those rules in a prominent location accessible to the public. At page 2 of 93-ORD-83, we observed:
In OAG 78-340, this Office held that KRS 61.876 requires that each public agency shall adopt rules pertaining to public records and failure to do so constitutes a technical violation of the Open Records Act. See also 92-ORD-1567. The spirit of the Act mandates the broadest possible dissemination of an agency's rules and regulations, although the letter of the law does not specifically designate where the rules must be posted. We concur with Ms. Cockrel in her view that the rules and regulations must, at a minimum, be posted in the Office of the University's Custodian of Records.
We urged the University to review its policy relative to KRS 61.876 to insure that it conforms to the Open Records Act.
Ms. Cockrel now advises this Office that, despite representations to the contrary, the University continues to ignore its obligations under KRS 61.876 and 93-ORD-83. Specifically, she notes that the University has not posted a copy of its rules and regulations in the Office of the Custodian of Records or in other prominent location accessible to the public, including the University Medical Center and the College of Agriculture. Ms. Cockrel further notes that rules and regulations which have been posted contain inaccuracies, to wit, misidentifying the Office where records requests are submitted. She asks that this Office "consider whether the failure to properly post the Notice of rules on how citizens must apply to inspect records serves to 'frustrate' their application to inspect records." Additionally, she asks by what mechanism a citizen can compel agency compliance with an open records decision which was not appealed in circuit court.
In closing, Ms. Cockrel observes:
The University has failed to comply with the legally binding Attorney General decision in 93-ORD-83, and, perhaps worse, they have misled your office that they did comply. If the University is allowed to feel confident that it can get away with such deceit and run-around at the level of your office, then the average citizen of Kentucky will be helpless to overcome their obtrusive, dilatory or illegal responses to records requests.
Ms. Cockrel asks that this Office issue a decision on these apparent violations, considering "the gravity of the University of Kentucky's policies in response to the requirements of KRS 61.870-884."
We are asked to remedy the University of Kentucky's continuing noncompliance with KRS 61.876 by issuing a decision declaring the University to be in violation of the Open Records Act. Based on the facts presented to us by Ms. Cockrel, we reaffirm our decision in 93-ORD-83. However, we remind Ms. Cockrel that this Office is not empowered to enforce its decision by the imposition of penalties. Indeed, as we noted in OAG 78-340, at page two, "there is no penalty provided for failure to adopt and post regulations. "
KRS 61.880(5)(b) creates a mechanism by which a prevailing party may enforce an Attorney General's decision after the thirty-day time limit has expired. That statute provides:
If an appeal is not filed within the thirty (30) day time limit, the Attorney General's decision shall have the force and effect of law and shall be enforceable in the Circuit Court of the county where the public agency has its principal place of business or the Circuit Court of the county where the public record is maintained.
If a public agency fails to file an appeal of a decision within thirty days, but refuses to comply with the terms of that decision, a prevailing party need only petition the circuit court for enforcement of the decision. These proceedings are not equivalent to the de novo appeal provided for at KRS 61.882. Since the unappealed decision has the force and effect of law, the issues raised are not relitigated. Instead, the court should enforce the decision as law. Ms. Cockrel may wish to consider this alternative in view of this Office's limited role in enforcing its decisions.
Ms. Cockrel and the University of Kentucky may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Although the Attorney General should be notified of any action in circuit court, he should not be named as a party in that action or in any subsequent proceedings.