Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This is an open records appeal from the actions of Kentucky State University. Linda Um Bayemake, an employee at KSU, complains that on February 14, 1996, she submitted a request to Karen McDaniel, Director of Library Services, for access to, and copies of, all of her own peer reviews, Ms. McDaniel's evaluation of Ms. Um Bayemake's performance, along with the "ranking sheet," any summary written by Ms. McDaniel "for denial of merit," and any letters of complaint for the period from February, 1992, to the present. Ms. Um Bayemake received no response to her request. She asks that this office review KSU's actions, and issue a decision stating that the University violated provisions of the Open Records Act in its handling of her request. For the reasons set forth below, we conclude that KSU violated the Act by failing to respond to Ms. Um Bayemake's request.
KRS 61.872 and KRS 61.880 set forth the respective rights and duties of public agencies and requesters under the Open Records Act. With respect to the rights and duties of persons wishing to inspect public records, KRS 61.872 provides:
(1) 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. No person shall remove original copies of public records from the offices of any public agency without the written permission of the official custodian of the record.
(2) Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
(4) If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
KRS 61.880(1) contains specific guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
These provisions presuppose the appointment of an official custodian of public records, defined as, "The chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control[.]" KRS 61.870(5). It is the official custodian who is ultimately charged with issuing responses to open records requests. KRS 61.880(1).
Ms. Um Bayemake's request was directed to Karen McDaniel. It is our understanding that KSU has designated Harold Greene, General Counsel, as its official custodian for purposes of processing open records requests. As official custodian, he is responsible for maintaining public records as well as responding to open records requests. In discharging these duties, he should make every effort to insure that University personnel are thoroughly schooled in the underlying principles, as well as the mechanics, of the Open Records Act. 94-ORD-73. Ms. McDaniel should have immediately forwarded Ms. Um Bayemake's request to Mr. Greene, who in turn, should have responded in three business days.
To the extent that KSU failed to comply with the procedural requirements of the Open Records Act, it violated the Act. Ms. Um Bayemake should, however, henceforward direct her open records requests to Mr. Greene. This matter is remanded to KSU with instructions that it immediately respond to Ms. Um Bayemake's request. Should the University fail to respond, or should it deny all or any portion of her request, Ms. Um Bayemake may initiate a new appeal with the Attorney General.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.