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 Kentucky State University violated the Open Records Act in its disposition of Dan S. Green's February 7, 2000, request for "copies of the job advertisements for the positions that were filled by the following persons: Joy Eke, Derrick Ramsey, and Jacqueline Bingham." Mr. Green received no response to his request, prompting him to initiate this open records appeal. For the reasons that follow, we conclude that Kentucky State University violated the Open Records Act by failing to comply with the procedural guidelines for agency response set forth at KRS 61.880(1), and by failing to advise Mr. Green in writing, and in clear and direct terms, that no records exist that are responsive to his request.
Upon receipt of this office's notification of appeal, KSU legal counsel Harold Greene responded to Mr. Green's appeal, advising this office:
Dr. Green has filed an appeal asserting that he had not received job advertisements for specific employees at the University. The General Counsel had previously forwarded all advertisements for positions at Kentucky State University. After extensive research in all the affected departments the office forwarded all advertisements for positions. Perhaps, the implication should have been clearly stated that no advertisements exist in relation to the positions you [sic] specified. A copy of Dr. Green's letter is attached which indicate the effort of the University to respond to his requests.
Mr. Greene offered no further explanation for the University's inaction relative to Mr. Green's February 7 request. It is the opinion of this office that KSU's disposition of this request for records was procedurally and substantively deficient.
KRS 61.880(1) establishes guidelines for 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.
Mr. Green's February 7 request was clearly identified as a request under the "Kentucky Open Records Act. " Nevertheless, KSU failed to issue a written response to Mr. Green's request within three business days of receipt. This omission constituted a procedural violation of the Open Records Act. KSU was not relieved of its duty to respond to Mr. Green's February 7 request by virtue of its earlier response to a similar request.
In his February 28 response, KSU legal counsel advised this office that no advertisements exist that are responsive to Mr. Green's request because none were apparently generated. It is precisely this kind of response to a records request that the Open Records Act mandates within three days of receipt of the request. In 97-ORD-161, the Attorney General examined the issue of how specific a public agency must be in responding to a request for nonexistent records. At page 3 of that decision, we observed:
In OAG 91-101, this office held that a public agency's response is insufficient under KRS 61.880(1) if it fails to advise the requesting party whether the requested record exists. Citing OAG 86-38, at page 3, we construed the obligation of the agency relative to a request to inspect documents, noting:
In other words, "If a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4.
Having reviewed Mr. Green's request for job advertisements for the positions filled by Joy Eke, Derrick Ramsey, and Jacqueline Bingham, we find that it was sufficiently specific to warrant an unequivocal written response that no such records exist. To the extent that it failed to give such a response, Kentucky State University violated 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.