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 Debra C. Barclay in connection with attempts by her and others to inspect and obtain copies of documents from the Madison County School System.
In a letter to Shannon Johnson, Superintendent of the Madison County School System, dated August 1, 1994, Ms. Barclay and others requested the opportunity to inspect and, perhaps, copy certain specifically enumerated documents.
Mr. Johnson advised Ms. Barclay in a letter dated August 3, 1994, that the records requested would be available at the offices of the Board of Education between the hours of 9:00 a.m. and 3:00 p.m., Monday through Friday.
In a letter to the Attorney General, dated August 10, 1994, Ms. Barclay set forth her version of what transpired on August 8 through August 10, 1994, relative to her inspection of various records at the offices of the school board. Her letter included a statement that she is appealing the manner in which the school superintendent responded to her requests to inspect documents under the Open Records Act. She complains of having to submit requests for copies, being harassed while inspecting records and being denied access to a public office during regular working hours. Ms. Barclay asks about her status relative to the status of other visitors between the hours of 3:00 p.m. and 4:00 p.m. and the status of policy manuals which she maintains are in the office to inform the public of policies and procedures.
KRS 61.874(1) states in part as follows:
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 records. "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. See 94-ORD-100, copy enclosed.
The board of education 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. The right to inspect documents cannot be granted on a selective basis as, generally, what can be seen by one person can be seen by every person.
Either Debra C. Barclay or the Madison County Board of Education 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.