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 the Owsley County Board of Education violated the Open Records Act in responding to Robert J. Shuman's January 18, 1999, request to inspect various records relating to the Owsley County School System. For the reasons that follow, we find that the Board's response was substantially consistent with the Act.
Mr. Shuman requested access to personnel records, payroll records, financial records, student enrollment records, minutes of school board meetings, and records relating to the Future Farmers of American and night school programs. In all, Mr. Shuman requested access to nineteen separate categories of records for periods of time up to five years.
On January 21, the Board responded to Mr. Shuman's request through its attorney, Kendall Robinson. Mr. Robinson stated that because of the volume of records implicated by the request, and the fact that many of the records were in storage, the board could not make the records immediately available. He indicated that the Board had "established the days of February 10 and February 11, 1999, between the hours of 9:00 A.M. and 3:00 P.M. for [Mr. Shuman] to come to the Owsley County Board of Education to view the records." Mr. Robinson explained that the Board would use the intervening time to locate, retrieve, and review the records before making them available for inspection.
With respect to specific records, Mr. Robinson advised:
Some of the records you have requested will have to be examined and personal items redacted from the records before you can view them, as it would be a violation of the Privacy Act as they are not subject to public inspection. Other records you have requested, specifically the class records of the Owsley County High School for Future Farmers class, including students names for the years of 1992 until present, is exempt under the Federal Educational and Right to Privacy Act, 20 U.S.C. Sec. 1232, and those records will not be made available. There are no records pertaining to Owsley County Night Schools, 1996-99. Some of the information you are requesting will be made available if in fact records exist that contain the information for which you have asked; otherwise, we are not required by Statute to create a document for you but will make available the information requested if it is in fact available. I am specifically referring to the transportation system of the buses and automobiles. The records requested for expenses incurred in repairs of the heating system are not available at this date since the work is still in progress and the Board has not been billed. There are no records in regards to an auction of wood shop machines in 1996.
In closing, Mr. Robinson reminded Mr. Shuman that although he is "presently under a Restraining Order to stay away from the Owsley County Board of Education building[, he would] be permitted to come on the date scheduled to view the records[.]" This response satisfied, in large part, the requirements of the Open Records Act. We examine the relevant portions of the Act as they apply to the Board's response.
KRS 61.880(1)
KRS 61.880(1) establishes procedural 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.
This statute permits a public agency up to three days to respond to an open records request. Mr. Shuman submitted his appeal to this office on the same day he made his request, asserting that his rights under the Open Records Act had been abridged. At that point, the Board had not had an opportunity to respond, and no open records issue was ripe for review by this office. It is incumbent on Mr. Shuman to afford the Board an adequate opportunity to respond before he initiates an appeal. Nevertheless, because the Board ultimately denied portions of that request, we proceed to an adjudication of this matter.
The Owsley County Board of Education issued a timely written response to Mr. Shuman's request. To this extent, the Board complied with KRS 61.880(1). However, the Board failed to cite the specific open records exceptions authorizing its partial denial of his request. Mr. Robinson stated that "some" of the requested records would be examined "and personal items redacted . . . as it would be a violation of the Privacy Act" to permit public inspection. Kentucky has no privacy act, and the federal Privacy Act "deal [s] with federal records in the hands of federal agencies and employees and no state official has the power to commit the state to treat those statutes as though they were state statutes." OAG 83-256, p. 4; OAG 80-519; 96-ORD-244. Nevertheless, the Open Records Act contains a privacy exception at KRS 61.878 (1)(a). That exception authorizes public agencies to withhold "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " While it is almost certainly true that portions of the personnel records which Mr. Shuman requested could properly be withheld under the privacy exception, KRS 61.880(1):
requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). To the extent that the Board failed to cite the relevant exception, and explain how the exception applied to the information withheld, its response was deficient. We urge the Owsley County Board of Education to bear these observations in mind in responding to future records requests.
Despite the irregularity, the Owsley County Board of Education's response to Mr. Shuman's request was otherwise consistent with KRS 61.880(1). The response contained an unequivocal denial of the existence of certain documents. On this issue, the Attorney General has stated:
In OAG 91-101, this office held that a public agency's response is insufficient under KRS 61.880(1) if it fails to advise the requesting party whether the requested record exists. Citing OAG 86-38, at page 3, we construed the obligation of the agency relative to a request to inspect documents, noting:
In other words, "If a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4.
97-ORD-161, p. 3, 4. Mr. Robinson notified Mr. Shuman that the Board could not honor his request for records relating to Owsley County night school, to repairs on the heating system, and to the auction of the wood shop machines because no such records currently exist. Assuming the truthfulness of these representations, we find that this was a proper response.
Finally, the Board of Education's response was also consistent with the Act insofar as the Board agreed to permit Mr. Shuman to examine records in order to extract the information he sought where no single record containing that information had been created. This office has long recognized that public employees are not required to compile or create records, but they are required to make available for inspection records containing nonexempt information that is responsive to a request. Thus, at page 5 of OAG 89-81, we observed:
Open Records provisions were not intended to serve as a comprehensive audit tool, or as a means of commanding compilation and production of specific information. Open Records provisions are intended to provide for inspection of reasonably described records held by public agencies.
We find no error in the Board's refusal to create records which do not exist to satisfy Mr. Shuman's request, and approve its decision to make available for his inspection records containing the previously uncompiled information he requested. In sum, we find that the Board's response was consistent with KRS 61.880(1) except for the omission of a specific citation to the exception authorizing its partial denial of Mr. Shuman's request.
KRS 61.872(5)
We turn now to the issue of timely access to public records. When the requested records are in active use, in storage, or not otherwise available, KRS 61.872(5) provides that 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.
Within one day of receipt of Mr. Shuman's request, Mr. Robinson notified him that his request implicated a large number of documents, many of which were not immediately accessible, and that the Board would need additional time to locate, retrieve, and review those records. Mr. Robinson advised Mr. Shuman "that the Owsley County Board of Education has established the days of February 10 and February 11, 1999, between the hours of 9:00 A.M. and 3:00 P.M. for [Mr. Shuman] to . . . view the records." Again, we find this response to be substantially consistent with the Open Records Act.
As noted, 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. When, however, a request is made for voluminous records for a period of several years, such time limitations are virtually impossible to meet. It is reasonable to assume that the task of gathering the voluminous documents which Mr. Shuman requested necessitated a reasonable extension of the three day period of limitation. Whether the twenty day extension of the deadline was reasonable is a closer question.
We believe that a determination of what is a "reasonable time" for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records. A twenty day extension of the deadline for inspection clearly represents the outermost acceptable delay. Certainly, any greater delay would violate the principle of timely access to public records. We remind the Board that:
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 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. Conversely, we remind Mr. Shuman 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 76-374, p. 5. We find that given the breadth of Mr. Shuman's request, the twenty day delay was not unreasonable, but trust that the parties to this appeal will be guided by these principles in future exchanges.
KRS 61.872(3)(a) and 61.876
With respect to the Owsley County Board of Education's decision to restrict Mr. Shuman's opportunity to inspect the records to a two day period, we note that as a general rule, "unreasonable restrictions on inspection may not be imposed." OAG 89-81, p. 4. At KRS 61.872(3)(a), the Open Records Act recognizes the individual's right to inspect public records "during the regular office hours of the public agency . . . ." Nevertheless, the Act also recognizes the right of public agencies to:
adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection. . . .
In construing these provisions, the Attorney General has consistently recognized that "any attempt by a public agency to limit the period of time within which a requester may inspect public records places 'an unreasonable and illegal restriction' upon the requester's right of access." OAG 80-641, p. 3; OAG 82-396; OAG 87-54; 93-ORD-39; 98-ORD-69. Here, however, the Board has apparently obtained a restraining order to prevent Mr. Shuman from entering the Board's office. The rules governing the requester's right of on-site inspection are superseded by the terms of the restraining order. The presence of a restraining order raises questions that are otherwise well beyond the scope of an open records appeal, and upon which the Attorney General must decline to comment.
The Family Education Rights and Privacy Act, 20 USC § 1232g and KRS 61.878(1)(k)
The Owsley County Board of Education denied Mr. Shuman access to "class records of the Owsley High School for the Future Farmers class including students' names for the years 1992 till present [sic]" on the basis of 20 USC § 1232g, the Family Education Rights and Privacy Act (FERPA). This response was proper if the school district has not taken the necessary steps to designate any of this information as directory information.
KRS 61.878(1)(k) permits an agency to withhold "all public records or information the disclosure of which is prohibited by federal law or regulation. " This provision incorporates 20 U.S.C. § 1232g, which regulates access to "education records," meaning records, files, documents, and other materials which contain information that is directly related to a student and which are maintained by the educational agency or institution. FERPA precludes the disclosure of personally identifiable student information to third parties in the absence of a parent or eligible student's prior written consent. It is also aimed at insuring parents of students, and students themselves, if they are over eighteen years of age, access to their education records.
20 U.S.C. § 1232g (a)(1)(A) provides:
No funds shall be made available under any applicable program to any educational agency or institution which has a policy of denying, or which effectively prevents, the parents of students who are or have been in attendance at a school or such agency or at such institution, as the case may be, the right to inspect and review the education records of their children.
The converse of this rule is found at 20 U.S.C. § 1232g(b)(1), which provides:
No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records or personally identifiable information contained therein other than directory information [meaning information relating to a student not normally considered confidential including the student's name, address, telephone listing, and date and place of birth] of students without the written consent of their parents to any individual, agency, or organization, other than [to certain enumerated officials and organizations, or in connection with certain activities]. . . .
Clearly, FERPA prohibits disclosure of personally identifiable student information to third parties in the absence of a parent's or eligible student's prior written consent. This would normally not include student names, which are treated as directory information if the school system has taken the necessary steps to designate them as such. 98-ORD-162. Thus, Mr. Shuman is entitled to know the names of students enrolled in the Future Farmers program from 1992 to the present if the Owsley County School System has designated this information as directory information. If the school system has not done so, this information, along with all other records generally characterized as education records, may properly be withheld. Resolution of this issue turns on whether the school system has designated students' names as directory information.
Conclusion
It is the opinion of this office that the Owsley County Board of Education's response was largely consistent with the provisions of the Open Records Act. Although the Board failed to cite the specific authority upon which it relied in partially denying Mr. Shuman's request, its response conformed to the requirements of the Act in all other material respects. The nonexistence of certain documents may raise records management issues which are capable of resolution by the Department for Libraries and Archives, but cannot be resolved in an open records appeal. We urge the Owsley County Board of Education and Mr. Shuman to work toward their own amicable resolution of these issues.
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.