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 Kentucky Department of Vocational Rehabilitation violated the Open Records Act in its disposition of a series of records requests submitted by Laura Atwood. For the reasons that follow, we conclude that the Department's disposition of her request was procedurally deficient but substantively correct.
Over a period of time extending from May 16, 1999, to September 24, 1999, Ms. Atwood submitted a series of requests for records relating to the operations of the Department and the denial of her claim. Although the Department responded by furnishing her with access to, and copies of, its state and federal regulations, counselor manual, consumer guide, and state plan, Ms. Atwood continues to maintain that she was denied access to the Department's policy and procedure manual. She references various state and federal regulations mandating the creation and implementation of a policy and procedure manual, noting numerous inconsistencies in the statements made by representatives of the local department and its federal counterpart. None of these statements, she advises, were reduced to writing. Convinced that she was improperly denied access to the Department's policy and procedure manual, Ms. Atwood initiated this appeal on January 28, 2000.
Responding to this office's notification of receipt of Ms. Atwood's appeal, Don Hiatt, Assistant Director of the Division of Program Services, maintained that the Department fully complied with Ms. Atwood's request by releasing all existing responsive records to her. He affirmatively stated that there are no other manuals with which to furnish her. Mr. Hiatt noted that the Department had discussed this matter with its federal representative, Dr. Paul Knight, Rehabilitation Specialist for the Rehabilitation Services Administration, U. S. Department of Education, who agreed that the Department had responded appropriately.
On February 22, 2000, this office contacted Dr. Knight in an attempt to finally resolve this dispute. Dr. Knight explained that although the Department of Vocational Rehabilitation once possessed a policy and procedure manual, that manual was consolidated into, and made a part of, the current counselor manual "some years ago." He acknowledged that the counselor manual, with which Ms. Atwood has already been furnished a copy, contains some outdated language, including references to a policy and procedure manual, and that this language should be deleted for the sake of clarity. He confirmed that the counselor manual is the functional equivalent of, and synonymous with, the old policy and procedure manual, and that the counselor manual, along with the applicable Kentucky Administrative Regulations, contain all existing guidelines for the operations of the Department of Vocational Rehabilitation.
This office has no reason to doubt the statements of both state and federal officials concerning the nonexistence of a policy and procedure manual. Clearly, that manual has been superceded by the current counselor manual, and Ms. Atwood has received a copy of this document. The response of the department was substantively consistent with the requirements of the Open Records Act insofar as it cannot make available for inspection and copying a document which no longer exists. See, for example, 93-ORD-51.
Nevertheless, we find that the department violated the procedural requirements of the Open Records Act, codified at KRS 61.880(1), in failing to respond in writing and within three business days, to Ms. Atwood's records requests. KRS 61.880(1) 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.
In construing KRS 61.880(1), the Kentucky 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.
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). It also requires a timely, written response directed to the person making the request. The failure to provide Ms. Atwood with written responses within three business days after receipt of her requests constituted a procedural violation of the Act. We urge the department to review the cited provision to insure that future responses conform to the Open Records Act.
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.