Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State University (KSU) violated the Open Records Act in responding to the September 1, 1999 open records request of Dan S. Green, Ph.D., Professor, Sociology, for copies of certain of the KSU's records. For the reasons that follow, we find that KSU's handling of Dr. Green's request violated the Act.
In his letter of appeal, dated September 22, 1999, Dr. Green indicated that as of that date, he had received no response from Mr. Greene or the KSU.
In a September 28, 1999 response to this office's notification of receipt of open records appeal, KSU Legal Counsel, Harold S. Greene, Jr., advised the Attorney General:
The Office of the University Legal Counsel received from Dr. Green, among other requests, a request dated September 1, 1999. Information regarding the names which were alleged to be missing has been provided. Additionally the resumes identified in the second paragraph were provided.
An itemized billing from the Holiday Inn will be provided to Mr. Green. The final itemized billing could not be made available until the stay of the President was completed. A copy of the contract (or agreement of understanding) will be provided to Dr. Green. The University did not engage into contracts with "bodyguards." However, the University will provide any payments made to security provided to the University on August 28, 1999. The University has not generated a record regarding the source of payment regarding the reward money.
The University will provide any and all copies of advertisements for professional staff.
Mr. Greene certified that a copy of his response to this office was mailed to Dr. Green on September 29, 1999.
On October 14, 1999, Dr. Green sent a letter to Mr. Greene addressing the response he had submitted to the Attorney General. A copy of this letter was provided to this office. In his letter, Dr. Green advised Mr. Greene that, although he had certified in his response to the Attorney General that a copy of the response had been mailed to Dr. Green on September 29, 1999, he did not receive such a copy until October 12, 1999. He further pointed out to Mr. Greene that, as of the date of the letter, he still had not received all the records which he had requested and detailed those records in question. He also noted that some of the data on the records provided were nearly illegible and incomprehensible.
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. Green's request. KSU issued no response. Upon receipt of notice that an appeal had been filed, KSU notified this office Dr. Green had been or would be provided with the records he requested.
Subsequently, Dr. Green provided this office with a copy of his October 14, 1999 response to Mr. Greene, indicating that, as of that date, he still had not received all the information that he had requested on September 1, 1999 and which Mr. Greene, in his September 28, 1999 response to this office, had advised would be provided.
KSU violated the Open Records Law by failing to respond in writing, and within three business days to Dr. Green's request. Inasmuch as KSU has not yet disclosed all the records which Dr. Green requested, 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 from 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. It is not enough for KSU to make some of the records available to Dr. Green and provide others in a piecemeal fashion over an extended period of time. 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. Green to inspect, and receive copies of, the records identified in his request, or risk the imposition of penalties by the courts pursuant to KRS 61.882(5) and KRS 61.991(2)(a). 98-ORD-188.
In his September 1, 1999 request, Dr. Green asked for "information about the source of the reward money offered for the recent vandalism on campus." Dr. Green's request was for information, as distinguished from a request to inspect reasonably identified documents. This office has consistently recognized that a request for information, as opposed to a request for specific documents, need not be honored under the Open Records Act. OAG 90-100.
Nevertheless, in his response submitted to this office, Mr. Greene responded to this request by indicating that "the University has not generated a record regarding the source of payment regarding the reward money. Regarding this point, this office has long recognized that a public agency cannot furnish access to records which do not exist. 99-ORD-55. Thus, if a written record regarding the reward money does not exist, the agency cannot be said to have violated the Open Records Act in denying this portion of Dr. Green's request.
Finally, addressing the issue of illegible copies, this office has, on more than one occasion, stated that "what the public gets is what [the agency has] and in the format in which [the agency] has it," OAG 91-12, p. 5. However, an agency is obligated to furnish a requester with legible copies of otherwise legible documents, and it has not fully discharged its duties under the Open Records Act until it has done so. 98-ORD-161. Accordingly, KSU should provide Dr. Green with legible copies of its otherwise legible records.
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.