01-ORD-094 | KOGC

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 Russell Primary School violated the Open Records Act in the disposition of Thomas Stone's April 9, 2001, request for "all records pertaining to the [Site Based Decision Making] elections including but not limited to the tally sheets, voter sign in sheets, and any notes, memos or other correspondence pertaining to the SBDM elections held in 1999, 2000, 20001," as well as "the visitor sign in log for April 5, 2001." For the reasons that follow, and upon the authorities cited, we conclude that Russell Primary School's response was only partially consistent with the Open Records Act.

In a response dated April 16, 2001, Principal Deneen Zimmerman notified Mr. Stone that parent elections "are considered PTA business," and referred him to the PTA president to obtain the records. With reference to teacher election records, Ms. Zimmerman advised that these records were unavailable "since we are not required to keep teacher election information." Ms. Zimmerman provided Mr. Stone with a copy of the April 5 visitor sign in sheet. This appeal followed.

On appeal, Mr. Stone questions Russell Primary School's partial denial of his request and the timeliness of its response. Specifically, he challenges the school's refusal to furnish him with teacher election records, noting that he made an oral request for these records on April 16, the same day that the election was conducted. In addition, he challenges the school's response to his request for parent election records, noting that "the records were transferred to the Principal," and that he first directed his request to the PTA president who referred him to Ms. Zimmerman.

In a supplemental response directed to this office following commencement of Mr. Stone's appeal, Ms. Zimmerman elaborated on Russell Primary School's response to his request. She explained:

Teacher Elections: Enclosed you will find a copy of our bylaws pertaining to elections. I have highlighted the teacher election section in pink. Advice from the Kentucky Department of Education is that the principal should allow the teachers to conduct their own elections. Russell Primary School teachers did this on April 16 and have done so for the last 3 years. They did not keep any records of past elections. I have asked the teachers if they kept ballots from this election and one teacher, Cora Frailie, did so. They were at her home but she returned them to me. I am including a copy. Mr. Stone's original request did not make it clear that he wanted both (parent and teacher) election information until April 16 by phone. Attached is a copy of Russell Primary School Council's bylaws (highlighted in yellow) that explains the procedure for requests. The policy states that requests must be made in writing but I am enclosing the ballots because the teachers did an excellent job in running their elections and we have nothing to hide. 1

Parent SBDM Election Records: Enclosed is the section of our bylaws (highlighted in blue) and the SBDM Law (KRS 160.345 2 bl.[sic]) that states "an election conducted by the parent and teacher organization of the school." I was advised by the Office of Education Accountability that I was to turn the request over to the PTA. This is what I did. The PTA president, Kristi Whittaker, offered Mr. Stone the records in a phone conversation on Monday, April 16. In summarizing his words, Mrs. Whittaker, said he told her "that is not what I wanted - that is not the point". He informed her he did not want them. On Wednesday, April 18, Mrs. Whittaker, offered these to him again in a meeting with the 1st Vice President, Carolyn Massie, present and Veralyn Eyermann, state PTA officer present. He refused them again and said something like "I am not interested in that anymore". Enclosed you will find a copy of the PTA policy concerning parent elections. It does state that the school will keep the records. I can ask the PTA president to mail these to Mr. Stone and you because as I said earlier she has them ready in an envelope for Mr. Stone but he refused them two times. I was only doing as advised by the Office of Education Accountability. I do not have a problem with sharing these but I was advised to let PTA give them to him. This is what I did.

Secret Ballot-Each person had his/her own ballot. They signed a roster which the PTA president has ready to give to Mr. Stone. The roster is used to ensure that the parents voting are parents of students preregistered to attend. (KRS 160.345 2 (b) 1.[sic]) The parent was then given a ballot and he/she could check two parents (out of six choices) whom he/she wanted to serve. The parent then gave the ballot to one of three parents who were appointed by the PTA Executive Board to run the elections or to a PTA volunteer who manned the absentee voting table. Please see our policy for further details.

Timely Manner - I spoke with Mrs. Bensenhaver on Monday, April 16, and explained that office personnel were unavailable during the week of spring break, April 9-13. I responded to the letter on the first business day after I received his request. My secretary gave Mr. Stone a copy on Monday afternoon, April 16. She also sent a copy certified mail on Tuesday, April 17 and he received it on Wednesday, April 18.

As indicated, Ms. Zimmerman furnished this office with portions of Russell Primary School PTA bylaws relating to elections, a blank teacher nomination form, completed faculty election ballots, procedures governing SBDM records requests, and a copy of the April 5 visitor sign in log.

Although a number of issues that Mr. Stone raised in his original letter of appeal have been resolved by Ms. Zimmerman's agreement to provide him with some of the disputed records, the following issues remain:

1. Whether Russell Primary School violated the Open Records Act in refusing to honor Mr. Stone's request for teacher election records because the school was not required to maintain these records, notwithstanding Mr. Stone's April 9 written request for "all records pertaining to the SBDM elections, " and his April 16 oral request for teacher election records;

2. Whether Russell Primary School violated the Open Records Act in referring Mr. Stone to the PTA president to obtain parent election records, notwithstanding the fact that the PTA SBDM election procedures state that "[t]he school is to keep all ballots on file [, and b]allots will not be destroyed for three years"; and

3. Whether the Russell Primary School violated the Open Records Act in failing to issue a timely response to Mr. Stone's request.

We believe that each of these questions must be answered in the affirmative.

Teacher election records

In his broadly worded April 9 request, Mr. Stone asked that Russell Primary School furnish him the copies of "all records" pertaining to the SBDM elections for 2001, 2000, and 1999. On April 16, he orally clarified his request, asking for teacher election records, along with parent election records from the April 5 election. With reference to the former category of records, Ms. Zimmerman denied Mr. Stone's request advising him that these records were unavailable because the school was not required to maintain them. Ms. Zimmerman subsequently obtained a copy of the teacher election records from Cora Frailie, a teacher at Russell Primary School, who had taken the ballots home. On April 27, Ms. Zimmerman notified this office that the ballots were available for inspection and copying, and provided this office with copies of same.

The question remains: Did Russell Primary School violate the Open Records Act in denying Mr. Stone's request on the basis of the unavailability of the records? In our view, the school failed to discharge both its records management and records access duties. 2 Contrary to Ms. Zimmerman's belief, teacher council member election records are scheduled public records for purposes of records retention and management. The Public School District Records Retention Schedule, page NN1, approved by the State Archives and Records Commission and applicable to all schools, pre-school through grade twelve, as well as SBDM councils, identifies Teacher Council Member Election Records, Series No. L3004, as vital records that must be retained by the agency for three years. A copy of the relevant portion of that schedule is attached hereto. According to representatives of the Public Records Division of the Department for Libraries and Archives, a vital record is one that is essential to the agency's operations and that is "necessary to protect the legal and financial rights of the government and of persons directly affected by the agency's activities." KRS 171.640. Such records are public records, for purposes of the Open Records Act, because they are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Russell Primary School's inability to produce these records for inspection and copying because it does not maintain them constituted a subversion of the intent of both the Open Records Act and the State Archive and Records Act. A copy of this decision has been forwarded to the Public Records Division of the Department for Libraries and Archives for any additional inquiries that agency deems warranted.

Having said this, we acknowledge that Russell Primary School could not produce records that had not yet come into existence on the date of Mr. Stone's original request. That request was submitted on April 9, and the teacher council member election was not conducted until April 16. A public agency is not obligated to honor a standing request for public records. See, e.g., 99-ORD-155; 99-ORD-110; OAG 91-78. On this issue, the Attorney General has observed:

The right to inspect public records attaches only after those records have been prepared, owned, used, in the possession of, or retained by the [public agency] . No such right attaches for records which have not yet come into existence. Simply stated, the Open Records Act governs access to existing public records. To the extent that [a] request is prospective, the [agency] is not obligated to honor it."

99-ORD-155, p. 3.

Although the records had not yet been created on the date Mr. Stone made his request, Russell Primary School was on notice, as of that date, that he wished to obtain the teacher election records when they were created. Moreover, on the date the election was held, Mr. Stone orally restated the request, thus eliminating any doubt as to the scope of his earlier request. This being the case, we do not believe the school discharged its duties under the Open Records Act by characterizing the records as unavailable on and after the date of their creation. Instead, it was incumbent on the school to retrieve the records, review them to determine if they qualified for exclusion or should otherwise be disclosed, and, if not excluded, disclose them to Mr. Stone.

KRS 61.991(2)(a) prohibits the willful concealment of public records. Although there is no proof, in the appeal before us, of an attempt to willfully conceal the records identified in Mr. Stone's request, it is the opinion of this office that because those records were the subject of a pending open records request, and were scheduled public records governed by a three year retention requirement, they should not have been treated so casually. Further, we note that no effort was made to recover teacher election records from 2000 and 1999. By virtue of the applicable records retention schedule, these records should have also been produced if otherwise nonexempt. To the extent that Russell Primary School failed to fully discharge these duties under the Open Records Act, we conclude that it violated the Act.

Parent Election Records

With reference to parent representative council member election records, we note that these, too, are scheduled records, Series No. L3005, that they are designated vital records, and that they are subject to a three-year retention period in the agency. Whatever the status of the ballots when the parents cast their votes at the PTA election, once they were conveyed to the school they became public records because they were "in the possession of or retained by a public agency. " KRS 61.870(2). Russell Primary School thereafter could not avoid its duties under the Open Records Act by referring Mr. Stone to the PTA president to obtain the records.

KRS 61.872(4) provides:

If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.

In general, however, "there is no specific exception to the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records might move appropriately or more easily be obtained from that other public agency. " OAG 91-21, p. 4; see also, OAG 90-71; 96-ORD-7; 98-ORD-17. This office has, on rare occasion, recognized the concept of "casual possession" of a public record. When legal authority vests absolute custody and control of records in the entity from which the casual possessor obtained the records, and that entity has made clear its intent to retain custody and control, the casual possessor is largely relieved of its duties under the Open Records Act. See e.g. 00-ORD-129; 94-ORD-155; compare, 98-ORD-100. The record before us does not support Russell Primary School's position that it lacked custody or control of the parent election records. Moreover, our review of KRS 160.345(2)(b)1. 3 does not support Ms. Zimmerman's view that such records must be obtained from the PTA president. Indeed, nothing in that section specifically, or the statute generally, addresses the disposition of open records requests for records generated in the course of a PTA election or in any way vests exclusive custody and control of parent election records in the PTA.

Accordingly, we believe it was incumbent on Russell Primary School to responsibly discharge its statutory duties by releasing the records to Mr. Stone, or, pursuant to KRS 61.880(1), asserting a statutory basis for nondisclosure, and explaining the statute's application to the records withheld. The school may not abdicate this duty in favor of the PTA, whose status as a public agency, subject to the requirements of the Open Records Act, is by no means clear. See, 99-OMD-178 (a parent teacher organization is not a public agency for purposes of the Open Meetings Act). This holding extends to parent election records for 1999 and 2000 as well as 2001.

Timeliness of response

In establishing the three day statutory deadline for agency response to an open records request, KRS 61.880(1) 4 excludes Saturdays, Sundays, and legal holidays. Mr. Stone's request was submitted on April 9, and Ms. Zimmerman's response was issued on April 16, some three to five business days after mailing depending on such variables as delays occasioned by the mail. In her supplemental response, Ms. Zimmerman attributes any delinquency in Russell Primary School's response to spring vacation and the absence of office staff from the school. The question presented is whether these vacation days constitute legal holidays for purposes of the Open Records Act, and are therefore excluded in calculating the three day deadline for response.

Having reviewed the statute pertaining to legal holidays generally (KRS 2.110), holidays for state personnel (KRS 18A.190), and holidays and days closed for the public schools (KRS 158.070), we must conclude that days closed for spring vacation cannot be characterized as legal holidays, and therefore do not toll an agency's response time. Both KRS 2.110 and KRS 18A.190 give statutory recognition to specifically identified legal holidays on which public offices may be closed. Conversely, KRS 158.070, supplemented by 702 KAR 7:125, for the public schools, establishes a minimum school term, and otherwise vests discretion in the local board of education to adopt a school calendar that includes the opening and closing dates of the school term, beginning and ending dates of each school month, instructional days, and days on which schools are dismissed. That calendar must then be filed with, and approved by, the Department of Education. 702 KAR 7:125 Section 2.(1). Although KRS 158.070(3)(c) authorizes four holidays, and KRS 158.070(5)(b) expressly references Martin Luther King, Jr.'s birthday, neither the statute nor the regulation recognizes any other specific legal holidays. Days on which students, faculty, and staff are not present for any reason other than Saturdays, Sundays, and legal holidays must therefore be calculated into the three-day response time.

We acknowledge that this creates a hardship for public schools. Nevertheless, the language found at KRS 61.880(1), requiring agency response within three days excluding Saturdays, Sundays, and "legal holidays, " does not admit of any exception for "days closed." Given the unique circumstances that prevail in the public schools, legislative revision may be warranted. This office is, however, bound to strictly construe the requirements of the law. We therefore conclude that Russell Primary School's failure to respond within three days of receipt 5 of Mr. Stone's request constituted a violation of KRS 61.880(1), notwithstanding the fact that the request was delivered during spring vacation.

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.

Footnotes

Footnotes

1 It is unclear whether Ms. Zimmerman also furnished Mr. Stone with copies of these ballots.