Opinion
Opinion By: A.B. CHANDLER III, ATTORNEY GENERAL; JAMES M. RINGO, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General in the context of an appeal from the Montgomery County School Board's responses to Ms. Carolyn Skidmore's six open records requests.
In her letter of appeal to this office, Ms. Skidmore states that, as Vice-Chairman of the Montgomery County School Board, she recently made six open records requests, in writing, for documents from the alternative school and each of the five schools in Montgomery County. She indicates that she received written responses from all the schools. Generally, each advised her that she could come and personally inspect the requested records, but if she preferred to only receive copies by mail, she would need to fill out an enclosed form identifying the records she sought. She was further advised she would be charged five cents per page for each record copied.
In her appeal, Ms. Skidmore asks the following questions:
Is not a member of a local school board responsible for the control of internal accounts and therefore entitled to access to all financial documents as well as other documents in the school system, without going through procedures the public would have to follow?
Should a board member be charged for copies that are an expense incurred while fulfilling the responsibilities of the elected office of board member?
These questions, raised in the context of an open records appeal, have been answered in prior opinions of this office, which are dispositive of this appeal. The Attorney General has consistently recognized that under the Open Records Law, all persons have the same standing to inspect public records and that the purpose for which an individual requests those records is irrelevant. 92-ORD-1136; OAG 89-86; OAG 91-129. "If one person in the absence of a court order] is allowed to inspect a record, all should be allowed to inspect. " OAG 89-86, at p. 5.
With reference to a city councilperson, in OAG 91-129, this office stated:
Where, however, a public official, [such as a councilperson] , representing a public agency, [such as a city council], makes a request for public records in the performance of a legitimate public function, KRS 61.878(5) mandates disclosure regardless of whether an exemption might be invoked. That statute provides:
[The exceptions to the Open Records Law] shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function.
This provision has been interpreted to mean that even if records are exempt from the public generally, they should be made available to public agencies, and by extension, public officials, for legitimate governmental purposes. [Citations omitted.]
Note, however, in OAG 92-141, involving a request by members of the school board to review the personnel records, including performance evaluations, of certified and classified employees, this office stated:
While the Open Records Act mandates, at KRS 61.878(5), that the exceptions to public inspection should not prohibit or limit the exchange of public records or the sharing of information between public agencies, this exchange is conditioned upon the agency with which information is shared serving a legitimate governmental need or performing a legitimate government function. Since the board of education no longer plays any role in personnel actions, it does not enjoy any greater right of access to the files by virtue of this provision. The board's right to inspect the personnel files of certified and classified employees of the school system is therefore the same as the right of inspection enjoyed by any citizen under the Open Records Act. A member of the board must submit a written request to the custodian of the files in which he specifically describes the records he wishes to inspect. The custodian may deny the board member's request if the record he asks to inspect falls within the parameters of one or more of the exceptions codified at KRS 61.878(1)(a)-(k) [now recodified as KRS 61.878(1)(a)-(1)].
Thus, in answer to Ms. Skidmore's first question, a member of the school board would be entitled to documents of the school system which relate to a legitimate governmental purpose and the board member's public function. If the request is for records which fall outside this area, then the board member's right of inspection would be the same as that of any other citizen under the Open Records Act. In this decision, we express no opinion as to Ms. Skidmore's entitlement to access to the requested records outside the context of an open records request.
As to Ms. Skidmore's second question, if a board member makes a request for copies of records under the Open Records Act, then he or she may be charged a reasonable fee for copies of the public records.
KRS 61.874(3) authorizes public agencies to prescribe a reasonable fee for making copies of nonexempt public records requested for noncommercial purposes which shall not exceed the actual cost of reproduction. These statutes contain no provision for the waiver of such fees for copies made for public officials under an open records request. In general, all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof. 92-ORD-1136. Accordingly, the board member may be charged a reasonable fee for copies made pursuant to an open records request.
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.
A.B. CHANDLER III, ATTORNEY GENERAL; JAMES M. RINGO, ASSISTANT ATTORNEY GENERAL