Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal from the Pike County School District's denial of Barry Johns's open records request for a copy of pornographic materials allegedly copied from an internet site by a school district employee, Bruce Hopkins, while on public time and using a public computer.
This office has recognized that review of records created on public equipment enables the public to monitor the use of equipment or services purchased or leased by a public agency with public funds for public purposes. 96-ORD-238. Records which were obtained on public time and on public equipment are, in our view, public records. The District has not provided a basis under the Open Records Act for withholding these records. Accordingly, we conclude the requested records are public records and they should be made available for Mr. Johns's inspection.
In a letter dated April 19, 1999, Neal Smith, counsel for the Pike County School District, advised Mr. Johns:
I had received a request from you regarding electronic data relative to Bruce Hopkins. On March 29, 1999 you called my office and advised one of our secretaries, Mary Chapman, that you had obtained the material from another source and to disregard the request. I was further advised by Teresa Reynolds that you had read this pornographic material to Ms. Reynolds on the telephone and that you advised her that you were in possession of all documentation that the Board would have.
I have now received a phone message dated April 19, 1999 that you were again requesting copies of electronic data relative to pornographic material allegedly reviewed by Bruce Hopkins.
I have requested Ms. Reynolds to again determine if any materials are in the possession of Mr. Welch or the Central Office staff and to make those available for your review.
I will advise you when these documents are located and of the cost of preparing copies. When the cost has been pre-paid we will provide you with the copies that you are requesting, if they are available.
After receipt of Mr. Johns's letter of appeal, which indicated that he had not received the requested records, we requested additional documentation relative to the issues raised in this appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Smith provided this office with a copy of a August 7, 1998 letter from Bruce Hopkins addressed to various officials, including the FBI, the Office of Education Accountability, and the Kentucky Department of Education, in which Mr. Hopkins protested the procurement and dissemination of documents obtained from then Superintendent Brenda Gooslin from his [Hopkins's] office computer and an assertion by Mr. Hopkins of his belief that an investigation of the matter would reveal a "deliberate, conscious, and conspiratorial effort among certain individuals within and without the Pike County School System to defame and discredit me in my professional position with this system and as a federal witness in an ongoing grand jury investigation;" a copy of a April 2, 1999 letter from Frank Welch, Superintendent, Pike County School System, to the Professional Standards Board and the Department of Education, reporting the alleged activity and referring the matter for any investigation the agencies may wish to conduct; and a April 2, 1999 letter from Mr. Hopkins to Superintendent Welch, which served as an attachment to Superintendent Welch's above referenced April 2, 1999 letter, in which Mr. Hopkins affirmed information he had provided in the August 7, 1998 letter.
In
Beckham v. Board of Education, Ky., 873 S.W.2d 575 (1994), the court held that a party affected by a public agency's decision to release records in response to an open records request has standing to contest the agency's decision in court. The court focused on the language of KRS 61.882(1) granting the circuit court of the county where the agency has its principal place of business or where the record is maintained jurisdiction to enforce the Open Records Act "by injunction or other appropriate order on application of any person." Declining the invitation to construe KRS 61.882(1) as a remedy for denial of access only, the court held that "the language used is without any such limitation" and that it would be anomalous to "disregard plain statutory language to conclude that an affected party who may possess a right to have documents excluded lacks standing to assert that right." Beckham at 578 and 579. "It would appear," the court noted, "that the General Assembly sought to promote disclosure by devising easy means toward that end, but left the door ajar for those who seek to prevent disclosure by granting them a litigation remedy to enforce the exclusions." Id. at 578. The Supreme Court concluded that the parties affected by disclosure, "having commenced litigation prior to release of the information sought, were entitled to be heard on their exclusion claims and entitled to appellate review of the merits in the Court of Appeals." Id. at 579.
In the instant case, the public agency has asserted no basis for withholding the requested records and, in fact, indicated in its April 19, 1999 letter to Mr. Johns that the documents would be made available for his inspection. Under authority of Beckham , the School District, prior to the release of the requested documents, may wish to notify Mr. Hopkins that it intends to release the records in order that he may take such action as he may deem appropriate should he wish to prevent disclosure or otherwise assert any rights he may have under KRS 61.882(1). However, the School District should not ignore its obligation under KRS 61.880(1) to timely provide the requester with the requested records after the notification is given. 98-ORD-24.
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.