00-ORD-226
December 7, 2000
In re: David Dixon/Harlan County Board of Education
Open Records Decision
The question presented in this appeal is whether the Harlan County Board of Education violated the Open Records Act in its disposition of David Dixon’s October 30, 2000, request for copies of board minutes from May 1998 to the present. Because the issue of access to the minutes was mooted by the board’s decision to furnish him with copies, we focus only on the procedural requirements of the Act. With respect to these requirements, we find that the board’s disposition of Mr. Dixon’s request was deficient.
In his letter of appeal, Mr. Dixon indicates that on October 30, he submitted his request for copies of the minutes, and paid an employee of the Board, Lisa Caudill, $30.00 for the copies. Mr. Dixon states that he subsequently called Superintendent Timothy Saylor’s secretary, Debbie Greene, who advised that she was aware of his request, but that Superintendent Saylor “was out of town until November 6, 2000.”
In a response directed to this office following commencement of Mr. Dixon’s appeal, Harlan County School Board Attorney Johnnie L. Turner stated that he has “personally orally advised David Dixon that any time he desired a copy of the Board’s Minutes, he could have a copy of them.” Continuing, Mr. Turner observed:
This is a standing open invitation and [Mr. Dixon] does not need to make a written request, just an oral request. This has also been told to him by the Superintendent. It is probably in the public minutes of the Harlan County Board of Education’s meetings.
Mr. Turner reiterated that the Board is aware of its duty to produce copies of its minutes “after they are completed,” but questioned whether the Board is required to honor duplicative requests for the same records.
While we commend the Harlan County Board of Education for its policy of openness relative to its public records, we remind the Board that “the procedural requirements of the Open Records Act are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request.” 93-ORD-125, p. 5. Thus, whatever its policy, upon submission of a written request the Board is obligated to respond in accordance with KRS 61.880(1) by notifying the requester in writing, and within three business days, that it will honor his or her request and by furnishing him or her with the records. If the Board is unable to observe its policy of openness relative to a particular record, it is obligated to notify the requester in writing, within three business days, and to cite the exception authorizing nondisclosure and explain its application to the record withheld. Thus, the rights of the requester are fully protected, and the duties of the agency fully discharged.
The Open Records Act assumes the appointment of an official custodian, defined as “the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control,” KRS 61.870(5), who is responsible for the timely processing of open records requests. KRS 61.872; KRS 61.880(1). The Attorney General has recognized that in the event the official custodian is absent,“an individual should be appointed as acting custodian to respond to open records requests in a timely fashion.” 94-ORD-86, p. 4; see also 96-ORD-185, p. 3 (holding that “the Law presumes the appointment of a records custodian . . . and in his absence, the appointment of an alternate to fulfill his duties”); 98-ORD-161, p. 3 (holding that “the three day statutory response time is not tolled by the absence of the agency’s records custodian”). Based on these authorities, we believe it is incumbent on the Harlan County Board of Education to designate an official custodian of records, and an alternate to act in his or her absence, to discharge the duties imposed on all public agencies under the Open Records Act.
With reference to the records at issue in this appeal, namely minutes of Board meetings, we direct the parties’ attention to KRS 61.835, which provides:
The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body.
(Emphasis added.) In construing this provision, the Attorney General has stated that “both the Open Meetings Statute, KRS 61.805 to 61.850, and the Open Records Statute, KRS 61.870 to 61.884, mandate public access to the minutes of a public body.” OAG 83-139, p. 2. Nevertheless, we have opined:
[A] public agency . . . speaks through its minutes as to actions taken and the minutes of the public agency should be made available to the public as soon as they are finally approved by the [agency] and such approval should be no later than the next [agency] meeting.
OAG 80-421, p. 3. This is because written and shorthand notes:
made in a meeting for the purpose of preparing the minutes are only preliminary records and may therefore be withheld from public inspection. Actions taken by a public agency or board must be recorded in the minutes and the minutes will become official after they have been approved at the next meeting of the Board. The Board members, of course, can challenge the secretary’s draft of the minutes of the meeting and it is for the majority of the Board to decide whether to accept the draft and make if official, or order a revision.
OAG 79-333, p. 1, 2. Although Mr. Dixon’s current request relates to minutes of meetings which have, in general, been approved and are therefore subject to inspection, both he and the Harlan County Board of Education should be guided by these observations in future open records exchanges relating to Board minutes.
In closing, we note that with respect to duplicative requests for documents, the Attorney General has stated that an agency is not “required to satisfy the identical request a second time in the absence of some justification for resubmitting the request.” 95-ORD-47, p. 6. We reasoned:
We do not believe, however, that [an agency] is required to satisfy the identical request a second time in the absence of some justification for resubmitting that request. KRS 61.872(2) provides that “[a]ny person shall have the right to inspect public records” during regular office hours or by receiving copies through the mail. Common sense dictates, however, that repeated requests for the same records may become unreasonably burdensome or disrupt the agency’s essential functions. Thus, at page 6 of OAG 92-91 this office observed:
To produce . . . records once entails some inconvenience to the agency; to produce them three and four times requires a level of “patience and long-suffering” that the legislature could not have intended. Citing OAG 77-151, p. 3.
95-ORD-47, p. 6. Unless a requester, including Mr. Dixon, can explain the necessity of reproducing the same records that have already been released to him, such as loss or destruction of the records, we can see no reason why an agency, including the Harlan County Board of Education, must satisfy the same request multiple times.
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 proceedings.
Albert B. Chandler III
Attorney General
Amye L. Bensenhaver
Assistant Attorney General
#676
Distributed to:
David H. Dixon
P.O. Box 484
Cumberland, KY 40823
Timothy Saylor
Harlan County School Board Superintendent
251 Ballpark Road
Harlan, KY 40831
Johnnie L. Turner
Harlan County School Board Attorney
P.O. Box 351
Harlan, KY 40831