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 Fayette County Public Schools violated the Open Records Act in responding to Lane Madden's requests for records and information pertaining to its "Policies and Procedures for Exceptional Children." For the reasons that follow, we find that although FCPS did not violate the Act in its disposition of Mr. Madden's requests for information pertaining to, and explanations of, those policies, it was obligated under the Act to produce the policy that was responsive to his request, if it exists, or to state unequivocally that no responsive policy exists.
Over the period of time extending from December 1, 2000, to February 22, 2001, Mr. Madden submitted a series of inquiries concerning FCPS' written policies on the exclusion of a named standardized test or a specific grade level in the annual goals portion of an exceptional student's individual education program (IEP). Mr. Madden serves on the Admissions and Release Committee (ARC) for his nephew, an exceptional student enrolled in the Fayette County Public Schools. His initial inquiries were not identified or formulated as open records requests, but were instead formulated as requests for information concerning, or explanations of, FCPS policies and procedures. However, our review of Mr. Madden's correspondence discloses that on February 12, 2001, he invoked the Open Records Act in requesting access to specifically identified public records consisting of:
THE PORTION OF THE FAYETTE COUNTY BOARD OF EDUCATION POLICIES AND PROCEDURES FOR EXCEPTIONAL CHILDREN THAT CONTAINS THE FOLLOWING INFORMATION:
THE PORTION OF THE FAYETTE COUNTY BOARD OF EDUCATION POLICIES AND PROCEDURES FOR EXCEPTIONAL CHILDREN THAT CONTAINS THE POLICIES AND PROCEDURES THAT ADDRESSES PLACING THE NAME OF A STANDARDIZED TEST IN THE ANNUAL GOAL PORTION OF AN INDIVIDUAL EDUCATION PLAN, AS WELL AS THE PORTION OF THE POLICIES AND PROCEDURES THAT ADDRESSES USING GRADE LEVELS IN THIS AREA OF AN IEP.
Mr. Madden emphasized that he did "not need any other portion of the Fayette County Board of Education Policies and Procedures for Exceptional Children." Again, on February 22, 2001, Mr. Madden requested "a copy of the page(s) (document) that . . . contain(s) the prohibition," or "a written statement of the legal authority or legal opinion that the Fayette County Public School System uses for the basis of this prohibition." In his February 22 letter, he indicated that on November 21, 2001, Beverly Henderson, FCPS Special Education Administrator for High Schools, advised the Admissions and Release Committee on which he served that the Fayette County Board of Education Policies and Procedures for Exceptional Children contained a prohibition on placing the name of a standardized test in the Annual Goals portion of an Individual Education Plan, but that his review of the policies and procedures manual failed to disclose such a prohibition. It was the policy containing this prohibition, Mr. Madden explained, that he wished to access by receipt of a copy.
On February 20, 2001, Elizabeth J. Fugazzi, Director of General Administration and Custodian of Public Records for FCPS, denied Mr. Madden's February 12 request, characterizing it as a request "for information rather than identified documents." She advised him that the Open Records Act "does not require public agencies to provide information." Ms. Fugazzi reaffirmed FCPS' position in responding to Mr. Madden's February 22, 2001, request, explaining:
[T]he Kentucky Open Records Law does not require the District to provide a "written statement of the legal authority or legal opinion (s)." That law refers to specific documents in the possession of the District. In your letter, you have acknowledged receipt of the document entitled Board of Education Policies and Procedures for Exceptional Children. You are again requesting "information" rather than "documents" and such information is not being provided under this request.
Shortly thereafter, Mr. Madden initiated this appeal.
In a supplemental response directed to this office following commencement of Mr. Madden's appeal, FCPS General Counsel Virginia W. Gregg elaborated on the school district's position. Ms. Gregg provided a chronology of the correspondence exchanged by FCPS employees and Mr. Madden, noting that "many of the letters from Mr. Madden were seeking information and were not initially submitted as Open Records requests." She maintained that FCPS nevertheless furnished Mr. Madden with its policies and procedures manual, relevant Kentucky Administrative Regulations, and a document entitled "Inclusion of Special Populations in the State-Required Assessment Accountability Programs" dated September, 1999, and charged him no copying costs. 1 It was her position that FCPS "properly denied requests for 'information,' 'explanations,' interpretations,' ' legal authority, ' or 'legal opinions,'" and that it otherwise fully complied with the Open Records Act by providing him with "all responsive documentation." Respectfully, we disagree.
It is the opinion of this office that FCPS was obligated to cull that portion of the manual, or other applicable authority, that contains the policy prohibiting inclusion of a named standardized test or specific grade level in the annual goals portion of an IEP and furnish a copy to Mr. Madden, or to advise him in clear and direct terms that no records responsive to his request exist. A public agency's response is insufficient under the Open Records Act if it fails to advise the requesting party whether the documents requested exist. OAG 86-38; OAG 90-26; OAG 90-69; OAG 91-101; 96-ORD-164; 00-ORD-104. At page 3 of OAG 86-38, we construed the obligation of a public agency relative to a request to inspect documents, noting that "KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested. " We explained:
If the documents exist and inspection is denied, you should list each document which the [agency] will not permit the requesting party to inspect and state how the exception to public inspection relied upon applies to the particular document withheld from inspection.
Echoing this view, in OAG 90-26, at page 4, we categorically stated, "If a record of which inspection is sought does not exist, the agency should specifically so indicate."
We are not persuaded that Mr. Madden's request was framed with insufficient precision to permit a categorical denial of the existence of the records. On this issue, the Attorney General has opined:
An open records request should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the request should not require "the specificity . . . of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government." 95-ORD-49, p. 5, citing Providence Journal Company v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.C.D. Rhode Island, 1978). Instead, the requester should submit "a brief and simple request for the [government] to make full disclosure or openly assert its reason for nondisclosure." Id. [The] requests must be framed with sufficient clarity and directness to enable the custodian of records to identify and retrieve the records he wishes to access. This, as we have so often noted, is a precondition to inspection of public records. See e.g., 92-ORD-1261, and authorities cited therein.
99-ORD-140, p. 6.
Prior to February 12, Mr. Madden's requests were formulated as requests for information, as opposed to requests for reasonably described public records, and, under the authorities Ms. Gregg cites, FCPS was not statutorily obligated to honor them. On that date, however, Mr. Madden submitted a properly framed open records request for a copy of that portion of the Fayette County Board of Education Policies and Procedures for Exceptional Children "that addresses placing the name of a standardized test in the annual goal portion of an individual education plan, as well as the portion of the policies and procedures that addresses using grade levels in this area of an IEP." In essence, he sought the particular policy or policies to which Beverly Henderson referred on November 21, 2001, when she stated that Fayette County Board of Education Policies and Procedures for Exceptional Children prohibits inclusion of this information in the Annual Goals portion of an IEP.
The fact that he wished to obtain a copy of the specific and individual policy, as opposed to the entire handbook, did not transform his request for a document into a request for information. The fact that he could not identify the desired policy by page and section number did not render his request imprecise or nonspecific. Clearly, Ms. Gregg had no difficulty in identifying the subject of his inquiry as "the District's Policies and Procedures and stated position regarding the exclusion of a named standardized test or a specific grade level on a student's individual education program" in a supplemental response directed to this office. She elected to treat Mr. Madden's request as an improperly framed request for information. We believe it was a properly framed request for an individual policy or policies pertaining to this subject, and FCPS was statutorily obligated to furnish him with copies of the policy or policies, as opposed to the entire handbook, or unequivocally advise him that no responsive policy exists. In sum, we find that FCPS has improperly equated an obligatory search for a particular policy with a request for nonobligatory research to be performed. If its obligatory search uncovers no responsive policy, it must affirmatively so state.
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.
Distributed to:
Lane Madden3700 High Point LaneAtlanta, GA 30331
Elizabeth FugazziDirector, General AdministrationFayette County Public Schools701 East Main StreetLexington, KY 40502-1699
Virginia GreggGeneral CounselFayette County Public Schools701 East Main StreetLexington, KY 40502-1699
Footnotes
Footnotes
1 Mr. Madden disputes these statements in a letter to this office dated March 19, 2001. He notes that FCPS' special education coordinator provided him with a copy of the manual "in 1997 or 1998," but not in response to an open records request, that it was not FCPS that provided him with the relevant KARs, but that instead he received them from Janice Richards and Pat Woods in the Kentucky Department of Education's Exceptional Children's Services, and that he has never received, and is unfamiliar with, "the third document mentioned in . . . Ms. Gregg's letter . . . ." Further, Mr. Madden challenges the statement that he has not been assessed copying costs, noting that FCPS did, in fact, charge him for copies of records provided to him in response to "an unrelated open records request." Although we are not equipped to resolve a factual dispute in the context of an open records appeal, we note these inconsistencies.