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 Jefferson County Public Schools violated the Open Records Act in the disposition of Dennis Janes' September 18, 2001, request for "records pertaining to two teachers employed by the school system . . . [and] records about JCPS teachers and job applicants who were seeking placement as a middle school teacher of mathematics or social studies. " For the reasons that follow, we conclude that JCPS violated KRS 61.880(1) in responding to the September 18 request.
On September 27, 2001, Carolyn Meredith, JCPS Director of Employee Relations, transmitted by fax some twenty-five pages of records deemed responsive to Mr. Janes' request. Although these records were accompanied by a facsimile transmittal cover sheet, no other written response was provided. On October 2, 2001, Mr. Janes initiated this appeal questioning JCPS's failure to make full disclosure of the records requested, or to provide a written explanation for the partial nondisclosure of those records as required by KRS 61.880(1).
In a letter directed to this office following commencement of Mr. Janes' appeal, Ms. Meredith acknowledged that the JCPS's September 27 response was incomplete and untimely, but agreed to "review procedures in our office for response to public records requests so that we comply with the statutory timelines and required written explanation. " A review of the record on appeal discloses that four of the ten requests were honored in full and are not in dispute. Ms. Meredith offered explanations for each of the remaining deficiencies identified in Mr. Janes' appeal, noting that in the case of requests 2, 3, 4, 5, 8, and 9, no responsive records exist. Further, she indicated that in the case of request 8, although no responsive record existed on September 18, she intended to provide Mr. Janes with the information "when it became available." Finally, she advised that in the case of request 10, although no responsive record existed on September 18, JCPS prepared a report containing the information sought, and transmitted it to Mr. Janes on September 27. We believe that the explanations offered in Ms. Meredith's October 15, 2001 letter to this office satisfy the requirement that a public agency "provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). Nevertheless, JCPS's responses did not conform to KRS 61.880(1) insofar as they were untimely, and, in the first instance, incomplete.
KRS 61.880(1) establishes guidelines for agency response to an open records request. 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 only exceptions to the general rule of agency notification and records access within three business days are found at KRS 61.872(4), (5), and (6). If the person who receives the request does not have "custody or control" of the records, he or she is obligated to notify the requester, and furnish the name and location of the actual custodian. If the record is "in active use, in storage or not otherwise available," the custodian must immediately notify the requester, and designate a place, time, and date for inspection within three days of receipt of the request. If further delay is necessary, the custodian must provide a detailed explanation of the cause of the delay, and designate the earliest possible date, time, and place on which the records will be available for inspection. If the request for records is an unreasonably burdensome one, or the custodian believes that repeated requests are intended to disrupt essential functions of the agency, he or she may refuse to permit inspection or mail copies of the records. None of these circumstances appear to have existed in the instant appeal.
Mr. Janes submitted his request on September 18. JCPS issued an incomplete response on September 27, and a complete response on October 15. Because JCPS did not respond to the request within three business days, we find that it violated KRS 61.880(1). Additionally, we find that JCPS's initial failure to include a statement of the specific exception authorizing the withholding of some of the records, and a brief explanation of how the exception applies to the record withheld, 1 or alternatively, to justify its inability to produce some of the records sought, constituted a violation of KRS 61.880(1). As we have so often noted, "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. We believe that JCPS is well-advised to review its existing policies to insure that future responses conform to the Act.
In addition to these demonstrable violations of the Open Records Act, we are obliged to comment on other irregularities in the written exchange that gave rise to this appeal. With reference to requests 2 and 10 of Mr. Janes' September 18, 2001 application to inspect public records, we note that neither JCPS, nor any other public agency, is obligated to honor a request for information or to create a record in order to discharge its statutory duties under the Act. 2 On this issue, the Attorney General has observed:
[The Open Records Act] was not intended to provide a requester with particular information, or to require public agencies to compile information to conform to the parameters of a given request. See, e.g., OAG 76-275; OAG 79-547; OAG 81-335; OAG 86-51; OAG 87-84; OAG 89-77; OAG 89-81; OAG 90-19. Rather, the law provides for inspection of reasonably identified records.
93-ORD-51, p. 3. Further, it is well settled that agencies are not required to create a record that does not already exist in order to satisfy a request. 00-ORD-133; 95-ORD-82; OAGs 91-220; 91-101; 90-69, 90-26; 86-38. Accordingly, JCPS's failure to "identify every person who was available for hire or placement as a middle school math or social studies teacher between July 16 and August 14, 2001, inclusive," where such information has not been compiled in a single record, and to produce an "EPSB Application for Emergency Certificate prepared in the 2000-2001 school year seeking emergency certification for Rekkai Steed," where no such record exists, cannot be deemed a violation of the Open Records Act.
Nevertheless, the unexplained nonexistence of an EPSB application for emergency certification for Mr. Steed in the 2000-2001 school year, along with other unexplained records deficiencies, raises records creation and management issues that may be appropriate for review by the Kentucky Department for Libraries and Archives under the authority granted to it by operation of Chapter 171 of the Kentucky Revised Statutes. The inability of a public agency to account for the unavailability of records whose existence is required by statute or regulation has prompted the Attorney General to opine, on more than one occasion:
[If an agency] fails to discharge its statutorily mandated duty to establish effective controls over the creation, maintenance, and use of records, and to make known to all of its officials and employees that no records are to be destroyed except in accordance with the law, the agency subverts the intent of the Open Records Act by frustrating full access to public records.
95-ORD-96, p. 8, citing 94-ORD-121; see also 00-ORD-150. Given the broad scope of Mr. Janes' request, the complexity of the records creation and maintenance issues which his request raises, and the particular facts of Mr. Steed's employment history which may be dispositive of these issues, we are not prepared to say that this appeal warrants additional inquiry by the Department for Libraries and Archives. However, after having considered JCPS's October 15, 2001, response and reviewed the available records, Mr. Janes may wish to pursue these records creation and maintenance issues with the Department. In the meantime, we encourage the parties to work in a spirit of cooperation toward a proper resolution of the remaining records access issues.
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.
Dennis Janes1400-B Waterfront Plaza325 W. Main StreetLouisville, KY 40202-4251
Carolyn MeredithJefferson County Public Schools3332 Newberg Rd.P.O. Box 34020Louisville, KY 40232
Lauren RobertsJefferson County Public Schools3332 Newberg Rd.P.O. Box 34020Louisville, KY 40232
Rosemary MillerJefferson County Public Schools3332 Newberg Rd.P.O. Box 34020Louisville, KY 40232
Footnotes
Footnotes
1 This error has not yet been corrected. With respect to request 2, JCPS asserts that an arguably responsive record exists but that it consists of a "working document." With respect to request number 9, JCPS asserts that it erroneously released an unredacted copy of an employment application, but "should have redacted home address, social security number, telephone number, and other personal information we do not normally release because of privacy considerations." Such vaguely worded bases for denying access do not satisfy the requirements of KRS 61.880(1).
2 Notwithstanding the fact that it was not statutorily obligated to do so, JCPS elected to gather and supply information that was responsive to request 10, and to create a record containing that information.