Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney Genera
Open Records Decision
The question presented in this appeal is whether the Kentucky Community and Technical College System violated the Open Records Act in responding to Scott J. LeCates's May 6, 1998, request for a copy of "the minutes of action taken at the KCTCS Board meeting on May 4, 1998 at the Lexington-Wyndham Hotel." For the reasons that follow, we find that KCTCS's response, although procedurally deficient, was substantively correct.
In that response KCTCS's records custodian, Sandra Gubser, advised Mr. LeCates:
This request will be provided to the extent the public records you have requested do exist and are not exempt under KRS 61.878, or other provisions of the Kentucky Open Records law.
You will be notified if and when your request is available for inspection and copying.
Ms. Gubser's response was dated May 11, 1998. As of July 17, 1998, the date he initiated his open records appeal, Mr. LeCates had not been notified that the minutes were available for inspection
Upon receipt of this office's notification of open records appeal, Beverly Haverstock, legal counsel at KCTCS, submitted a supplemental response to Mr. LeCates's request. In it, she explained that she had spoken to Mr. LeCates by telephone, advising him "that the minutes requested would be available once they were approved by the Board of Regents." Continuing, Mr. Haverstock observed:
Mr. LeCates has not yet received the documents he requested for two reasons:
1. He requested, "minutes of action taken at the KCTCS Board meeting on May 4, 1998 , at the Lexington-Wyndham Hotel." However, there was no meeting of the board on May 4, 1998 . Therefore, no records exist that are responsive to this request.
2. There was a meeting of the Board on May 1, 1998 , at the Lexington-Wyndham Hotel. We are planning to notify Mr. LeCates that those minutes are available when the Board approves them. Since Mr. LeCates attends all of the Board's meetings, we assumed that the request for minutes of the meeting on MAY 4, 1998 , was a typographical error, and, in fact, he meant May 1, 1998 . The minutes of the May 1, 1998 , meeting will appear on the agenda of the next regularly scheduled Board of Regents meeting. When they are approved, Mr. LeCates will be notified and will receive a copy of those minutes, if, in fact, those are the minutes that he intended to request.
In closing, Ms. Haverstock noted that because Mr. LeCates attends the Board's meetings and has been told that the minutes will be available once they are approved by the Board, and because he "frequently appears unannounced in the KCTCS office" and has submitted three other requests for records, "this appeal amounts to harassment of this system."
While we do not share KCTCS's belief that Mr. LeCates's appeal was filed for purposes of harassment, we concur with Ms. Haverstock in her view that the minutes of the meeting need not be disclosed until they are approved at KCTCS's next meeting. Before we reach these issues, we address certain procedural irregularities in its original response.
KRS 61.880 sets forth the duties and responsibilities of a public agency in responding to a request received under the Open Records Act. Subsection (1) of that provision requires that the agency, upon receipt of a request, respond in writing to the requester within three business days of receipt of the request, and indicate whether the request will be granted. The only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three business days and to provide the requester with timely access to the requested records. "Nothing in the statute permits an agency to indefinitely postpone or delay this statutory deadline." 94-ORD-156, p. 10.
KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
Although it responded to Mr. LeCates's request in writing and within three business days, KCTCS failed to advise him that the minutes of the May 1 meeting would not be available until approved at the Board's next meeting, and to notify him of the earliest date--presumably immediately after that meeting--for inspection. Indeed, in its original response, KCTCS did little more than acknowledge receipt of Mr. LeCates's request and agree to furnish him with copies of the records he had requested, at an unspecified date, "to the extent [those] records exist and are not exempt. " This response was therefore deficient.
In the intervening period, Mr. LeCates and Ms. Haverstock apparently conversed on the subject of his records request. None of these conversations was reduced to writing. Ms. Haverstock indicates that she advised Mr. LeCates that the minutes would be available for inspection immediately following the Board's next meeting. Such a statement, had it been documented with citation to the appropriate exemptions, would have satisfied the requirements of KRS 61.872(5). In order to preserve the written record for appeal, we urge KCTCS to conduct open records exchanges in writing rather than by telephone, and to review the cited provisions to insure that its responses comply in all other material respects with the Open Records Act.
Turning to the substantive issue in this appeal, we find that KCTCS properly refused to release the minutes of its May 1 meeting on May 6, the day Mr. LeCates submitted his request. Pursuant to KRS 61.835:
The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body .
(Emphasis added.) In construing this provision:
The Attorney General has stated that "both the Open Meetings Statute, KRS 61.805 to 61.850, and the Open Records Statute, KRS 61.870 to 61.884, mandate public access to the minutes of a public body." OAG 83-139, p. 2. Nevertheless, we have opined:
OAG 80-421, p. 3. This is because written and shorthand notes:
OAG 79-333, p. 1, 2.
98-ORD-36, p. 3, 4. We therefore find no error in KCTCS's denial of Mr. LeCates's request. Of course, once the minutes are approved by KCTCS's board, they must be made available for inspection and copying.
We conclude by noting that there is no evidence to support KCTCS's claim that Mr. LeCates's appeal "amounts to harassment of this system." In an early open records decision, the Attorney General opined:
Repeated requests to inspect records of a public agency alone do not, in our opinion, amount to harassment. Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with the provisions of the law. We believe that a public agency should only invoke the excuse of harassment in extreme and abusive circumstances. We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection.
OAG 77-151, p. 3. We have also recognized, however, that:
State agencies and employees are the servants of the people as stated in the Preamble to the Open Records Act, but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time.
OAG 76-375, p. 4. In determining whether a series of open records requests is intended to disrupt a public agency's essential functions, and thus warrants invocation of KRS 61.872(6), we must weigh two competing interests: that of the public in securing access to agency records, and that of an agency in effectively executing its public function. In weighing these interests we must bear in mind that the burden is on the public agency to demonstrate, by clear and convincing evidence, that the requests (or in this case the appeals) are intended to disrupt its essential functions. Because Mr. LeCates never received written confirmation that his request would be honored on a date certain, and because KRS 61.880(1) entitled him to such a response, we cannot say that his appeal was filed in bad faith, or that his subsequent records requests are intended to disrupt KCTCS's essential functions. Simply stated, the record does not, at this time, support Ms. Haverstock's claim.
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.