Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; Thomas R. Emerson, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal by Jim Blake in connection with attempts by him and others to obtain copies of documents from the Madison County School District.
At this point the only document submitted to and examined by this office consists of Mr. Blake's letter of appeal, received August 10, 1994. In that letter Mr. Blake states that after he and two others had finished inspecting various records pursuant to written authorization from Mr. Shannon Johnson, Superintendent of the Madison County School System, they requested copies of those documents. According to Mr. Blake, they were advised by Mr. Johnson that they would have to submit a written request for those copies and wait three days for the decision of the public agency. Mr. Blake also said that his group was told that they could not stay in the building after 3:00 p.m. and that various school system personnel were rude to them.
After reviewing Mr. Blake's letter he seems to be presenting three issues to this office. One concerns the requests for copies and the response of the agency concerning those requests, another pertains to the behavior of school system personnel, particularly Mr. Johnson, while Mr. Blake and his group were inside school system facilities, and the last issue relates to an allegation that various records in the school system's possession may be altered or destroyed.
KRS 61.874(1) states in part:
Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all public records not exempted by the terms of KRS 61.878. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate.
While this particular statutory subsection does authorize a public agency to require a written request for copies, there is no three day response period in this provision. In addition, in 94-ORD-47, copy enclosed, we said that after a person inspects records that person is entitled to copies of the record. "The right to copies of public records is thus correlative to the right to inspect those records." Also, in 93-ORD-93, copy enclosed, this office said that under KRS 61.874(1) and other sections of the Open Records Act a person is guaranteed the right to obtain copies of public records. Thus, while a public agency may require a written request for copies of documents, that device cannot be utilized to delay a legitimate request as it is a mere formality and something done only for the agency's convenience.
The public agency violated the Open Records Act to the extent that it utilized a requirement for a written request to make copies to delay, impede, or hinder the making of those copies.
In connection with a person's right of inspection KRS 61.872(1) states in part:
All public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right.
KRS 61.872(3)(a) provides that, "A person may inspect the public records: (a) During the regular office hours of the public agency [.]"
KRS 61.876(1) requires each public agency to adopt rules and regulations "to provide full access to public records" and "to provide assistance and information upon request."
In 93-ORD-39, copy enclosed, at page three, this office said in part relative to the statutory sections mentioned above:
Underlying each of these provisions is the recognition "that free and open examination of public records is in the public interest . . . ." KRS 61.871. This office has consistently recognized that public agencies must work in a spirit of cooperation with individuals wishing to inspect their records. See, e.g. , OAG 91-58. This necessarily includes creating an environment which is conducive to effective inspection.
This office in 94-ORD-14, copy enclosed, stated in part that the response from the public agency is expected to be not only prompt but also to be polite and courteous.
Thus the public agency violated the Open Records Act to the extent that the conduct of officers and employees of the school board created a hostile atmosphere which rendered the facilities provided unsuitable for inspection and to the extent that the public agency reduced inspection time to less than the agency's regular office hours.
As to the allegation that various records in the school system's possession may be altered or destroyed we direct your attention to 94-ORD-73 where we dealt with the maintenance of records. This office cannot deal on an appeal with an issue relative to the destruction of records where the requesting party has not made a request to the agency for records which has been denied because such records have been disposed of or destroyed. Any question as to the destruction of records is premature for this office to decide at this time.
Either Jim Blake or the Madison County School District or both of them may challenge this decision by initiating action in the appropriate circuit court. While KRS 61.880(3) requires that a public agency notify the Attorney General of any actions filed against it under the Open Records Act, that statute also provides that the Attorney General shall not be named as a party in any actions involving the Open Records Act.