Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This is an appeal from the Bullitt County Board of Education's handling of two open records requests submitted by Keith Wiedmar. On September 8, 1997, Mr. Wiedmar made a request for financial information pertaining to the school system and the "updated 97-98 budget in Munis form." Ten business days later, Assistant Superintendent of Finance Wayne Muscar responded to Mr. Wiedmar's request by sending him a copy of Mr. Wiedmar's letter with written responses to his requests for information and the Board of Education's 1997 annual financial report. In a subsequent telephone conversation, Mr. Muscar provided Mr. Wiedmar with the additional information he had requested.
On September 25, 1997, Mr. Wiedmar submitted a second request, this time asking that the Board of Education provide him with a copy of the "97-98 year-to-date budget and the year-end budget for 96-97." Apparently anticipating a delay in release of these records, on September 26 he notified this office that he was "having problems receiving information and in a timely manner." The Attorney General treated this letter as a complaint made under KRS 61.880(4), and issued a notification of open records appeal on September 30, 1997. On October 1, 1997, Mr. Muscar sent Mr. Wiedmar a computer-generated budget level report.
We are asked to determine if the Bullitt County Board of Education subverted the intent of the Open Records Act, short of denial of inspection, in responding to Mr. Wiedmar's requests for information and records. We find that the Board's failure to respond to his first request within three business days constituted a procedural violation of the Open Records Act, but that there is insufficient evidence to suggest that the Board intended to subvert the Act. We further find that the Board was not obligated to honor Mr. Wiedmar's request for information, but was only required to provide him with copies of precisely described records.
We begin by noting that the Board of Education's response to Mr. Wiedmar's first request was procedurally deficient. KRS 61.880(1) establishes 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.
The only exceptions to the general rule of agency notification and records access within three business days are found at KRS 61.872(4), (5), and (6). If the person who receives the request does not have "custody or control" of the records, he or she is obligated to notify the requester, and furnish the name and location of the actual custodian. If the record is "in active use, in storage or not otherwise available," the custodian must immediately notify the requester and designate a place, time, and date for inspection within three days of receipt of the request. If further delay is necessary, the custodian must provide a detailed explanation of the cause of the delay, and designate the earliest possible date, time, and place on which the records will be available for inspection. If the request for records is an unreasonably burdensome one, or the custodian believes that repeated requests are intended to disrupt essential functions of the agency, he or she may refuse to permit inspection or mail copies of the records. It is not an acceptable practice to postpone access by ten days while an open records request is processed.
Mr. Wiedmar submitted his first request on September 8. The Board of Education responded on September 22. Because the Board of Education did not respond to this request within three business days, the Board violated KRS 61.880(1). If this delay was occasioned by the voluminous nature of the records requested, the Board should have notified Mr. Wiedmar within three business days that the records were not immediately available, per KRS 61.872(5), and indicated the earliest date on which the records would be released.
Mr. Wiedmar submitted his second request on September 25. The Board of Education responded on October 1 by releasing budget level reports. There appears to be no issue in controversy relative to Mr. Wiedmar's second request. Nevertheless, we urge the Bullitt County Board of Education to review the cited provisions to insure that all records requests are satisfied in a timely fashion.
We do not find any evidence that the Board intended to subvert the intent of the Open Records Act by failing to respond in a timely fashion. The Board explained that the delay in providing Mr. Wiedmar with the records he requested resulted from the difficulty in gathering the large number of documents implicated by his request. The Board promptly responded to Mr. Wiedmar's second request. No doubt the Board will continue to work with Mr. Wiedmar, in the spirit of cooperation, to insure that his requests are promptly and properly handled.
In closing, we note that the Board went above and beyond its statutory duty in responding to Mr. Wiedmar's requests for information. In his September 8 request, Mr. Wiedmar asked for such items of information as "total dollars spent on teacher's salaries" and "total tax dollars received." The Attorney General has long recognized that apublic agency is not obligated to honor a request for information as opposed to a request for specifically described records. "The purpose of the Open Records Law is not to provide information but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. Although information may be gleaned from these records, it is the public agency's duty to make public records available for inspection and copying. Public agencies are not required to gather and supply information independent of that which is set forth in public records. As we noted at page 5 of OAG 89-81:
Open Records provisions were not intended to serve as a comprehensive audit tool, or as a means of commanding compilation of and production of specific information. Open Records provisions are intended to provide for inspection of reasonably described records held by public agencies. See OAG 76-375. Open Records provisions do not provide for, and agency workers are not required to provide under them, instruction in understanding of the meaning or import of information shown upon records produced.
See also, OAG 81-333; OAG 86-51; OAG 89-77; OAG 90-19. In order to avoid future conflicts relating to requests for information, Mr. Wiedmar may wish to formulate future open records requests as requests for specifically described records.
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.