Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State University violated the Open Records Act by failing to respond to Lacy L. Rice Jr.'s October 24, 1997, request for copies of "all financial records for Homecoming 1997 Student Events," and by failing to honor that request. We find that KSU did, in fact, violate the Act.
This is not the first time that Mr. Rice has sought redress for his grievances against KSU through the Office of Attorney General. In 97-ORD-177, the Attorney General held that KSU violated the Open Records Act by failing to provide Mr. Rice with copies of 1993-1997 financial records for the Student Government Association, the 1997-1998 budget for the Student Government Association, and all proposals and the contracts for the 1997 homecoming student concert. At pages 7 and 11 of that decision, which was issued on November 26, 1997, the Attorney General directed KSU to furnish Mr. Rice with copies of these records.
On December 5, 1997, Mr. Rice again contacted this office to express concern over KSU's failure to make full disclosure of the records. In a responsive letter dated December 15, 1997, we advised Mr. Rice that 97-ORD-177 would become legally binding on KSU if not appealed within 30 days of its issuance. KRS 61.880(5)(a). This office has not been notified that KSU appealed 97-ORD-177, and that decision now has the force of law. It can be enforced in the Franklin Circuit Court which has the power to award Mr. Rice his costs for enforcement, including attorney's fees and an amount not to exceed $ 25 per day for each day that he is denied access to the records. KRS 61.882(5). In addition, the Franklin Circuit Court is empowered to find any KSU official who willfully conceals these records guilty of a Class A misdemeanor, and to hold the official in contempt. KRS 61.991(2)(a) and (b). These are formidable weapons to compel compliance with the Open Records Act. A copy of our December 15 response to Mr. Rice's letter was forwarded to KSU's general counsel, Harold Greene.
In a separate letter, also dated December 5, Mr. Rice initiated this open records appeal, complaining that KSU failed to respond to his October 24 request for 1997 homecoming student events financial records. This is a different request from the one we upheld in 97-ORD-177. On December 10, the Attorney General sent a copy of that letter of appeal, along with our own notification of receipt of open records appeal to KSU President Mary Smith and Harold Greene. We received no response to our notification, and have not been advised that KSU has taken any action relative to Mr. Rice's request.
Kentucky State University's failure to respond to Mr. Rice's October 24 request in a proper and timely fashion constitutes a violation of KRS 61.880(1). 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.
This Office has not been presented with any reason for KSU's repeated failure to conform its conduct to the clear requirements of the Open Records Act. KSU had not one but two opportunities to comply with KRS 61.880(1) by responding to Mr. Rice's original request and by responding to his request upon receipt of this office's notification of appeal. KSU took no action. This omission is exacerbated by the fact that the records which Mr. Rice requested are of a clearly public nature, and no justification for withholding those records has been presented.
Kentucky State University is directed to immediately release all 1997 homecoming student event financial records to Mr. Rice.
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.