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 Law in responding to Dr. Joyce Watford's October 13, 1998, request to review her personnel records. For the reasons that follow, we find that KSU's handling of Dr. Watford's request violated the law.
Dr. Watford requested access to personnel records housed in the office of the Vice-President for Academic Affairs, Dr. Ronald Avery, as well as records housed "in other offices throughout the campus, including [her] promotion and tenure dossier and file." She also asked that KSU furnish her with a copy of her 1989 grievance, and the cover letter, vita, and journal which she left with Dr. Reid when she met him for the first time in July, 1998. Dr. Watford received no response to her request, prompting her to initiate this open records appeal.
In a November 6 response to this office's notification of receipt of open records appeal, University counsel Harold S. Greene, Jr., advised the Attorney General:
I have reviewed the Open Records Appeal filed by Ms. Joyce Watford. In her request she sought the opportunity to review any and all materials contained in her personnel files at Kentucky State University. Pursuant to KRS 61.878(3) Ms. Watford is entitled to the records as requested. These files will be made available to the complaining party as soon as practicable.
Mr. Greene certified that a copy of his response was mailed to Dr. Watford's post office box on November 6. However, as of the date this decision was written, she had not received any written or oral notice that the records were available for inspection, and the copies available for retrieval.
It is the opinion of this office that KSU's response was deficient in several respects. KRS 61.880(1) establishes procedural guidelines for public 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.
All public agencies, including Kentucky State University, are thus statutorily bound to respond to a request for records in writing, and within three business days. Denial of all or any portion of the request must be articulated in terms of the requirements of the statute. As Kentucky's Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response to [a] request [does not] even remotely comply with the requirements of the Act. . . .
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996).
In the appeal before us, KSU did not issue a limited and perfunctory response to Dr. Watford's request. KSU issued no response. Upon receipt of notice that an appeal had been filed, KSU notified this office that her request would be honored "as soon as practicable. " To date, Dr. Watford has not received her copy of this response, or any other communication relative to the availability of her personnel records for inspection, and copies of the other records identified in her request for retrieval.
KSU violated the Open Records Law by failing to respond in writing, and within three business days to Dr. Watford's request. Inasmuch as the University has not yet disclosed the records which Dr. Watford seeks, this violation is ongoing. As this office has so often noted, "Timely access to public records has been defined as any time less than three days form agency receipt of the request." 94-ORD-134, p. 11, citing OAG 84-300, p. 3. Elaborating on this position, the Attorney General has observed:
The Open Records Act does not prescribe a reasonable time within which access must be afforded to public records. . . . KRS 61.872(5) normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request.
Id. at 11. The law clearly does not envision release of public records when it is "practicable" for the agency. Simply stated, it is not enough for KSU to agree to make the records available to Dr. Watford when it is feasible, or convenient, for the institution. The law imposes a duty on KSU to make arrangement for inspection and production of copies, as requested, within three days. "Public agencies must work, in a spirit of cooperation, with individuals who request to inspect their records to insure that those individuals are afforded timely access to the records they wish to inspect. " 93-ORD-134, p. 12. In this same spirit, KSU must make immediate arrangements for Dr. Watford to inspect, and receive copies of, the records identified in her request, or risk the imposition of penalties by the courts pursuant to KRS 61.882(5) and KRS 61.991(2)(a).
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.