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 Hart County Board of Education violated the Open Records Act in denying Tim Logsdon's July 19, 1999, request for a "copy of all the materials provided to the school board members in their board packets each month. . . ." Mr. Logsdon, who is president of the Hart County Education Association, asked that he, or a designee, be furnished with the board packet prior to each school board meeting as are other persons who attend the Board's meetings. For the reasons that follow, we conclude that the Board properly denied Mr. Logsdon's request insofar as it has no obligation to honor a standing request for "board packets. " Nevertheless, we find that the Board must adopt a uniform policy regarding release of the packets. If, in fact, it is selectively furnishing copies of the packets to other persons who attend its meetings, it is obliged to reevaluate its current practice and implement a uniform policy. Finally, we find that the Board cannot adopt a policy of blanket nondisclosure relative to materials contained in the board packets. In response to a properly presented open records request, the Board is obliged to review the packets to determine if any nonexcepted materials, that is to say any materials which cannot properly be characterized as preliminary drafts or notes (KRS 61.878(1)(i) or preliminary recommendations or memoranda in which opinions are expressed, must be made available for examination, and to articulate a statutory basis for denying access to the excepted materials in terms of the requirements of the Act.
In response to Mr. Logsdon's July 19 request, Superintendent H. Waymon Denison advised:
1. The records you seek do not currently exist. A public agency cannot provide access to records which do not exist and is not required to create a document which does not already exist. 96-ORD-92.
2. The records you seek constitute preliminary drafts and notes pursuant to KRS 61.878(1)(i) which are not intended to give notice of any final action of the Hart County Board of Education. They also constitute preliminary recommendations and preliminary memoranda in which opinions are expressed and policies are formulated or recommended pursuant to KRS 61.878(1)(j). As a result, they are not subject to inspection. OAG 78-626; OAG 86-26; OAG 86-54; 96-ORD-121.
Dissatisfied with this response, Mr. Logsdon initiate an open records appeal to this office. Recognizing the necessity of removing documents containing private information from the packets, Mr. Logsdon nevertheless argued that "the contents of this package become public records when they are provided to the members of the Board of Education." In closing, he noted that at past meetings of the Board he has "observed that manila folders have been passed out to some members of the audience as well as the press," and that, in his view, " all citizens of Hart County have a right to this information as it is being discussed."
Based on prior decisions of this office, we cannot agree with Mr. Logsdon that the Hart County Board of Education is obligated to honor a standing request for access to board packets for upcoming meetings. On this issue, the Attorney General recently opined:
"standing requests" for public records are not proper under the law, and need not be honored. Thus, in OAG 91-78, the Attorney General affirmed the actions of apublic agency when it refused "to issue a blanket release of documents to be used by the [agency] in futuro." OAG 91-78, p. 4. We reaffirmed this position a year later when we stated that the office of Attorney General "has never recognized the validity of a standing request." OAG 92-30. See also , 95-ORD-43 (holding that a "standing request" for electronically stored records in the custody of the county clerk was procedurally deficient); compare , OAG 90-112, p. 3 (holding that a request for all "automobile accident reports prepared by the Kentucky State Police Department, London Post, . . . for a period of four (4) weeks prior to the date of inspection period ," specifically identified the records sought, and must be honored. This line of authorities clearly supports the view that the Open Records Act regulates access to existing records only.
We concluded our analysis in OAG 90-112 by noting that a public agency may "require a separate application for inspection of specific records each time an applicant desires to inspect public records. " OAG 90-112, p. 6. This position is firmly rooted in KRS 61.872(2), and reflects the view that "the procedural requirements of theOpen Records Act are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 94-ORD-128, p. 2; 95-ORD-43, p. 3.
99-ORD-110, p. 3. In 99-ORD-110, the Attorney General affirmed this line of decisions and concluded that the Bullitt County Sheriff need only honor requests for existing records, meaning records which have been 'prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Pursuant to KRS 61.872(2), we further held that the sheriff could require the requester to submit a new request each time he wished to inspect the department's records. We find that the logic of these decisions extends to the appeal before us.
The right to inspect public records attaches only after those records have been prepared, owned, used, in the possession of, or retained by the Hart County Board of Education. No such right attaches for records which have not yet come into existence. Simply stated, the Open Records Act governs access to existing public records. To the extent that Mr. Logsdon's request is prospective, the Board is not obligated to honor it.
Nevertheless, we believe that it is incumbent on the Board to adopt a uniform policy relative to release of board packets. In an early opinion, the Attorney General recognized that "agencies should have uniform policies regarding inspection of their records. If one person (in the absence of a court order) is allowed to inspect a record, all should be allowed to inspect. " OAG 82-394, p. 5. As we subsequently observed, the exceptions to public inspection:
must be enforced uniformly, or not at all. [An agency] may elect to enforce these exemptions . . ., but must do so with an even hand. . . ." It is the content of the record itself which makes it either mandatorily accessible to public inspection and copying or exempt from the mandatory requirement."
OAG 82-394, p. 3; OAG 82-234; OAG 89-79 cited in OAG 92-30 and 95-ORD-9.
It is not proper to selectively enforce the exceptions. If, as Mr. Logsdon alleges, the Board has, at past meetings, released copies of its agenda packets to selected members of the audience, its actions are inconsistent with the spirit, as well as the letter, of the Open Records Act. KRS 61.872(2) clearly provides that " any person shall have the right to inspect public records. " (Emphasis added.) Mr. Logsdon, or his designee, must be accorded the same treatment as any other person who attends the Board's meetings, and the decision to release materials in the packets must turn on the content of the record, not the identity of the individual asserting his right of access.
With respect to the issue of the content of the board packets, we conclude that upon presentation of a properly framed request for existing records, it is incumbent on the Hart County Board of Education to review the materials in the packet before issuing a blanket denial. If the packets contain material which is not excepted under KRS 61.878(1)(a) through (1), the Board must "separate the excepted and make the nonexcepted material available for examination." KRS 61.878(4). Further, the Board must identify any records withheld and cite the exception upon which it relies in denying access. KRS 61.880(1). "While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld to a specific exemption, such as that required by the federal courts in Vaughn v. Rogers, 484 F.2d 830 (D.C. Cir. 1973) cert. denied 415 U.S. 977 (1974), . . . we believe that the Board is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable, and to release any documents which do not fall squarely within the parameters of the exceptions and are therefore not excludable. " 97-ORD-41, p. 6, 7.
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.