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 Green River Correctional Complex Education Center subverted the intent of the Open Records Act, short of denial of inspection, by misdirection of the applicant, Kevin Black. For the reasons that follow, we find that the Center's disposition of Mr. Black's request did not constitute a subversion of the intent of the Act.
On December 14, 1999, Mr. Black submitted a written request for various records to Ken Travis, Education Center Director. Those records were identified as:
1. All Kentucky TECH Postsecondary Quality Assessments conducted at GRCC;
2. All KCTCS 1 Postsecondary Quality Assessments conducted at GRCC;
3. All Statistical Student Profiles conducted at GRCC concerning "Objectives Completed" including the subject of "leavers" (the designation given to students who have been involuntarily dismissed from school);
4. All "job dismissal" forms prepared by Glenn Ford which pertain to me;
5. My GRCC Vocational School transcript; and
6. All documents which concern, reflect, or pertain to Glenn Ford's employment absenteeism.
On December 16, 1999, Mr. Travis responded to Mr. Black's request, advising him that he must submit his request for records in the custody of KCTCS to KCTCS's records custodian, Sandra Gubser. Mr. Travis further advised Mr. Black that he must also submit copies of his request to KCTCS employees Al Kelty and Beverly Haverstock. This appeal followed.
In his letter of appeal, Mr. Black complains that because Mr. Travis does not, and cannot truthfully, state that the requested records are not in his custody or control, he cannot properly rely on KRS 61.872(4) in requiring Mr. Black to resubmit his request to KCTCS's official records custodian, Sandra Gubser. 2 He further objects to Mr. Travis's statement that he must submit his request in triplicate to KCTCS. Finally, Mr. Black challenges Mr. Travis's blanket characterization of all records identified in his request as KCTCS records. "For example," he notes, "the four 'job dismissal' forms prepared by GRCC Vocational Plumbing Instructor Glenn Ford, pertaining to [Mr. Black], are distinctly prison-related. Likewise, Mr. Travis seeks to misdirect my request seeking access to my GRCC Vocational School transcript." In support of the latter assertion, Mr. Black submitted a copy of the "KCTCS * Green River Education Center Student Handbook" which provides, at page 9, that students may obtain a free copy of their transcripts from the Education Office, and that a copy will be sent from the school only if a written release is on file.
In a supplemental response dated January 4, 2000, KCTCS general counsel Beverly Haverstock elaborated on Mr. Travis's response. She explained:
We believe that Mr. Black's request was not denied, nor was the intent of the Open Records Act subverted. Mr. Black delivered his written request on December 14, 1999 to Ken Travis, director of the Green River Correctional Complex. Mr. Travis then responded in writing on December 16, 1999, directing Mr. Black to send his request to the KCTCS Official Records Custodian, Ms. Sandra Gubser. This response is appropriate under KCTCS procedure, practice and custom requiring all open record requests be responded to by the KCTCS Official Records Custodian or under his or her authority. Ms. Gubser has not received this request. Instead of forwarding his request to the Official Records Custodian, Mr. Black appealed the response of Mr. Travis, characterizing it as an intent to subvert the Open Records Act.
Ms. Haverstock acknowledged that the Open Records Act does not require a requester to submit a request in triplicate, and that Mr. Travis erred in directing Mr. Black to mail copies of his request to herself and Al Kelty.
It is the opinion of this office that Mr. Travis's disposition of Mr. Black's request did not constitute an intentional subversion of the Open Records Act. Nevertheless, we urge GRCC and the Department of Corrections, working in cooperation with the KCTCS under their current memorandum of agreement, 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 provide assistance and information upon request and to insure efficient and timely action in response to application for inspection . . . . " KRS 61.876(1)(emphasis added). Because KCTCS acknowledged Mr. Travis's error in directing Mr. Black to submit his request in triplicate, we do not address this issue.
Where public records are in the custody and control of the agency to which a request is directed, but the recipient of the request is not the agency's official custodian, the recipient must immediately forward the request to the agency's official custodian. 98-OMD-64. Where the public records are not in the custody and control of the agency to which the request is directed, the agency discharges its duty under the Open Records Act by so notifying the requester and furnishing him with the name and location of the official custodian of the agency in whose custody the records reside. KRS 61.872(4).
The facts of the appeal before us lie somewhere between these extremes. Mr. Travis, to whom Mr. Black's request was directed, is Director of the Corrections Education Center at Green River Correctional Complex, a position created by the memorandum of agreement between the Department of Corrections and KCTCS. Under the terms of the agreement, KCTCS "agrees to operate the education and training programs for residents in correctional facilities managed by the . . . Department of Corrections." The position of corrections education center director is jointly filled by a representative of the Department of Corrections, the correctional facility served, and KCTCS. Memorandum of Agreement; Part II G. He "reports to both the Department of Corrections and KCTCS for the operation of the education programs." Memorandum of Agreement, Attachment B, Corrections Education Center Director Description of Duties, Part 2. Our review of the memorandum of agreement does not disclose which agency's open records policies govern requests for records directed to the education center director.
Under these circumstances, we cannot conclude that Mr. Travis's notification to Mr. Black that he should submit his request to KCTCS's official records custodian constituted an intentional subversion of the Open Records Act. Ms. Haverstock states that his response was "appropriate under KCTCS procedure, practice and custom requiring all open records requests be responded to by the KCTCS Official Records Custodian or under his or her authority." We find no error in this policy. 3
Nevertheless, we urge GRCC, the Department of Corrections, and KCTCS to adopt a formal policy for student access to records relating to the education and training programs for residents in GRCC, and all other correctional facilities managed by the Department of Corrections, which KCTC has agreed to operate. This policy should conform, in all particulars, to the requirements of the Open Records Act, and should be displayed in a prominent location accessible to the students. KRS 61.876(1) and (2). The potential for a recurrence of the problems Mr. Black encountered should thereby be eliminated.
We attach little weight to Mr. Black's argument that some of the records he requested cannot be characterized as KCTCS records. In a conversation with the undersigned, Ms. Haverstock confirmed that the records identified in Mr. Black's request were KCTCS records. Nor do we attach much weight to the language appearing in the student handbook which describes an alternative mechanism for obtaining a copy of a student transcript. Mr. Black elected to proceed under the Open Records Act, and our analysis is confined to the Act. We urge Mr. Black to employ the procedures described in Mr. Travis' response, with the exception, of course, of submitting his request in triplicate. If he wishes to obtain the records identified in his request under the Open Records Act, he should resubmit his request to KCTCS' current official custodian of records, Beverly Haverstock, at the address Mr. Travis furnished.
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.
Footnotes
Footnotes
1 Kentucky Community Technical College System.
2 Ms. Gubser's duties as official custodian of records for KCTCS have recently been assumed by Beverly Haverstock, general counsel for KCTCS.
3 Such a policy actually behooves Mr. Black, whose access to records of the facility in which he is housed is severely circumscribed by operation of KRS 197.025(2). Mr. Black enjoys a greater right of access to records in the custody or control of KCTCS.