00-ORD-222
December 4, 2000
In re: David H. Dixon/Harlan County Schools
Open Records Decision
These matters, having been presented to the Attorney General in two separate appeals but presenting identical questions of law, are consolidated for purposes of adjudication under KRS 61.880(2). It is the decision of this office that the Harlan County Schools violated the Open Records Act in failing to respond to David H. Dixon’s open records requests in a proper and timely fashion.
By letter dated October 23, 2000, Mr. Dixon requested access to the minutes of the Harlan County School Board and a copy of the section of the Board manual dealing with School Board/Superintendent relationship when Grace Ann Tolliver was Superintendent in 1995 and 1996.
In his letter of appeal, dated October 31, 2000, Mr. Dixon stated he had not received any information about this request. On November 1, 2000, this office sent a copy of Mr. Dixon’s letter of appeal, along with our notification of receipt of open records appeal, to the Superintendent, Harlan County Schools and the agency’s attorney. Although that notification clearly states that pursuant to 40 KAR 1:030, Section 2, “the agency may respond to this appeal,” we received no response to our notification, and have not been advised that the agency has taken any action relative to Mr. Dixon’s request.
By letter dated October 31, 2000, Mr. Dixon made another open records request, asking for “a copy of the federal grant proposal for asbestos removal from Cumberland High School that Mr. Mike Howard referred to in the Tri-City News paper article dated October 18, 2000. I also request the approval letter for the grant proposal.”
In his letter of appeal, dated November 3, 2000, Mr. Dixon indicated that he had called the Superintendent’s secretary and had been advised that the Superintendent had received his request, but was out of the office until Monday, November 6, 2000. On November 1, 2000, this office sent a copy of Mr. Dixon’s letter of appeal, along with our notification of receipt of open records appeal, to the Superintendent, Harlan County Schools and the agency’s attorney. As with the previous appeal discussed above, we received no response to our notification, and have not been advised that the agency has taken any action relative to Mr. Dixon’s request.
The Harlan County Schools’ failure to respond to Mr. Dixon’s open records requests in a proper and timely fashion constitutes a violation of KRS 61.880(1). 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.
The agency had not one but two opportunities to comply with KRS 61.880(1) by responding to Mr. Dixon’s original requests and by responding to his requests upon receipt of this office’s notifications of appeal. The agency failed to do so.
Having provided no response to his open records requests and, thus, no legal basis for denying Mr. Dixon access to the requested records, the agency is obligated to provide the requested records, if they exist, for his inspection. Accordingly, the Harlan County Schools, if it has not already done so, is therefore directed to immediately make the records identified in Mr. Dixon’s requests available for his inspection, or to notify him in writing that no responsive records exist.
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.
Albert B. Chandler III
Attorney General
James M. Ringo
Assistant Attorney General
#666, #675
Distributed to:
David H. Dixon
P.O. Box 484
Cumberland, KY 40823
Timothy Saylor
Harlan County School Board Superintendent
251 Ball Park Road
Harlan, KY 40831
Johnnie L. Turner
Harlan County School Board Attorney
P.O. Box 351
Harlan, KY 40831