Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Harlan County School System violated the Open Records Act in its response to the open records requests of David H. Dixon for certain categories of records in the school system's custody.
In January and February, 2001, Mr. Dixon made requests for various categories of records. In three separate letters of appeal to this office, each dated February 12, 2001, Mr. Dixon challenges the action of the school system relative to his request for the following records: (1) copies of Board minutes from 1990 to 1995; (2) copies of the teaching certificates for the certified staff at Cumberland High School; (3) copies of the printouts or statements of the payments to Susan W. Saylor when she served as the school board's attorney. We will address each category of records seriatim.
Board Minutes
In his letter of appeal, Mr. Dixon states that on January 20, 2001 he made a request in writing for a copy of the Board's minutes from 1990 to 1995. He also indicated he had asked Debie Green to make him a copy of the minutes when she could get the time in the first week of December, 2000.
By letter dated January 29, 2001, Timothy W. Saylor, Superintendent, responded to Mr. Dixon's request. Addressing the request for the minutes, Superintendent Saylor advised:
Concerning your request for copies of the board minutes from 1990 through 1995 due to the volume of the minutes books this would require a lot of time so you will need to make an appointment to come and inspect these books and someone will make any copies but in addition to the ten cents per copy you will have to pay for the time of the employee.
KRS 61.872(3)(a) and (b) establish the guidelines for records access under the Open Records Act. That statute provides:
KRS 61.872(3)(a) and (b) establish the guidelines for records access under the Open Records Act. That statute provides:
(3) A person may inspect the public records;
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
The statute thus contemplates records access by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. A requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. A requester who lives or works in a county other than the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. Since he lives in Cumberland, Harlan County, Mr. Dixon could clearly be required to view the requested records at the Harlan County School System's office before obtaining copies. 99-ORD-151. Thus, the agency's response in this regard was not a violation of the Open Records Act.
The school system agreed to make the minutes available for his inspection and suggested that Mr. Dixon make an appointment. However, the agency stated that he would have to pay for the time of the school system employee to copy the records.
KRS 61.874(3) provides in part:
The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required.
This provision directs that the fee charged for copies should be based on the agency's actual expense, not including staff costs. Accordingly, the school system cannot charge Mr. Dixon for staff time in reproducing a copy of the minutes. Such a charge is not authorized under KRS 61.874(3). Mr. Dixon should make arrangements to inspect the requested minutes and should only be charged the school system's actual costs of copying the records, which the Superintendent's response indicates is ten cents per page.
Teaching Certificates
Mr. Dixon requested copies of teaching certificates for all certified staff at Cumberland High School. In his response to this request, Superintendent Saylor advised:
However your request for copies of teaching certificates for all certified employees are not readily available and would have to be created. This requires a considerable amount of time and services of an additional employee. If you wish to proceed then it will be necessary for you to pay the cost for the additional employee and should you be willing to do so, please let us know and we will make the necessary arrangements.
We are not sure what is meant by the response that the teaching certificates would have to be created. In 00-ORD-126, involving the same parties in this appeal, we held that a requester would be entitled to copies of teaching certificates with personal information, such as social security number and home address, redacted. We reasoned that disclosure of such records advanced the public's right to know that the Board is faithfully performing its duty to insure that its employees possess the requisite qualifications for the positions they hold. We conclude that Mr. Dixon is entitled to copies of the requested teaching certificates, with personal information redacted. Accordingly, arrangements should be made to provide Mr. Dixon with redacted copies of these records.
For the same reasons set forth above, the school system cannot require Mr. Dixon to pay the cost of an additional employee to make copies of these records, as it would be a violation of KRS 61.874(3).
Statement of Payments to School Board Attorney
Mr. Dixon requested a copy of the monthly payments that the Harlan County School Board paid Susan Coleman Lawson when she was the Board's attorney and a copy of each itemized statement she submitted to the Board for approval. In his response to this request, Superintendent Saylor advised Mr. Dixon that he had been mailed a response to his request for information about Ms. Lawson. Mr. Dixon acknowledged in a response to the Superintendent that he had received a copy of Ms. Lawson's contract, but indicated that he had received nothing about the amount that the Board had paid for her legal services.
Regarding disagreements of this nature between a requester and a public agency, this office, in OAG 89-81, stated:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
Thus, it is not the role of this office to resolve a disagreement or misunderstanding, if any, between the parties as to the records requested and the records provided. OAG 89-81. We do note that the public is, however, entitled to review the contracts, vouchers, and other business records of a public agency, including records of payments made to attorneys, and bills and statements submitted to an agency by its attorneys. Should these invoices and billing statements disclose substantive legal matters protected by the attorney client privilege, and exempt under KRS 61.878(1)(l), the exempt material should be separated from the nonexempt material, and the nonexempt material released for inspection. OAG 92-14; OAG 92-92; 96-ORD-129. Applying these principles to the facts presented in this appeal, if the school system has not provided the requested records relating to payments made to Ms. Lawson, and itemized statements she submitted to the Board, which did not disclose substantive legal matters, these records should be made available for Mr. Dixon's inspection.
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.
Distributed to:
David H. DixonP.O. Box 484Cumberland, KY 40823
Timothy SaylorSuperintendent, Harlan County Schools251 Ball Park RoadHarlan, KY 40831
Johnnie L. TurnerHarlan County School Board Attorney P.O. Box 351Harlan, KY 40831