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 University of Kentucky violated the Open Records Act in failing to afford William Jacobs timely access to a public record. For the reasons that follow, we find that the University's inordinate delay in furnishing him with a copy of the record constituted a violation of the Act.
On October 15, 1998, Mr. Jacobs requested copies of:
the letters of application submitted by the current Lexington Campus Chancellor, the current Medical Sector Chancellor, the current Vice President for Research and Graduate Studies, the current Athletic Director and Special Assistants to the President when they responded to the respective job announcements for their respective current positions.
Mr. Jacobs emphasized that he was only interested in receiving copies of their "cover letter[s] of application."
In a response dated October 26, 1998, 1 the University's official records custodian George J. DeBin advised Mr. Jacobs as follows:
The President's office provided a copy of Special Assistant to the President Juanita Fleming's letter to Sarah Scott regarding the position of Special Assistant to the President. There are no other positions of "Special Assistant" to the President other than Dr. Fleming. The President's office also reported that they have no "cover letters" for the other positions.
Human Resources advised that they found no such letters in the personnel files of Dr. Bramwell, Vice President for Research and Graduate Studies, Dr. Holsinger, Chancellor of the Medical Center, or C. M. Newton, Director of Athletics. The file for Dr. Zinser, Chancellor of the Lexington Campus was not found during Human Resource's search. We anticipate it will be located within two days and we will follow-up when it is found. Also we checked with the offices of all four of these individuals, and no such letters were maintained in their offices.
The University did not follow up, prompting Mr. Jacobs to initiate this appeal.
In his letter of appeal, Mr. Jacobs argues that "the official custodian's failure to exert responsibility that the personnel file of the Chancellor be maintained so as to enable its timely location has directly led to violation of [his] timely access (3 days) to either the job application in that file or of [his] timely access (3 days) to a written denial of its nonexistence in the file." In his supplementary response to Mr. Jacobs's appeal, Mr. DeBin states that he "inadvertently failed to follow-up with Mr. Jacobs as promised in [his] response," and indicates that he has now furnished Mr. Jacobs with a copy of Chancellor Zinser's letter of application. We find that the University's failure to provide Mr. Jacobs with timely access to Chancellor Zinser's letter violated the Open Records Act. We believe that 93-ORD-134, a copy of which is attached hereto and incorporated by reference, is controlling. In particular, we refer the parties to the discussion a page 9 through 12 of that decision.
In 94-ORD-134, the Attorney General held that a delay in providing access to public records of one hundred and twenty days constituted a violation of the Open Records Act, which contemplates records access within three business days of receipt of a request. 2 Mr. Jacobs's request was submitted on October 15, 1998. The University furnished him with a copy of the letter identified in his request on June 28, 1999. Well over eight months elapsed between the date on which his request was submitted and the date on which his request was honored. A delay of this duration violates the three day deadline for agency response found in KRS 61.880(1), and the principle of timely access found in KRS 61.872(5), both of which are analyzed in depth in 93-ORD-134.
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.
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