Request By:
Thomas Stone
104 Sunset Court
Ashland, KY 41101Ronnie Back
Superintendent
Russell Independent Schools
409 Bellfont Street
Russell, KY 41101
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 Russell Independent Schools violated the Open Records Act in the disposition of Thomas Stone's January 4, 2002 request for records maintained by the school system. For the reasons that follow, we find that the district's response was, with the exceptions noted below, consistent with the requirements of the Act.
In a letter directed to Superintendent Ronnie Back, Mr. Stone requested access to:
. the reports sent to Washington from Mrs. Maddox;
. e-mails received by Ms. Maddox from her Washington supervisor for the month of November;
. minutes from the Project F.A.M.I.LY. Advisory Board meetings for 9-26-01, 10-24-01, 10-30-01 and the most recent meeting;
. Mrs. Maddox's Advisory Board membership list for September and October;
. The RHS SBDM minutes for 2001 both regular and special meetings[.]
On January 8, 2002, Superintendent Back faxed a response to Mr. Stone, advising him that the requested records had been compiled and suggesting that he contact Superintendent Back to schedule an appointment for inspection. Mr. Stone immediately phoned Superintendent Back and arranged to inspect the records the next morning.
Shortly thereafter, Mr. Stone initiated this appeal challenging the district's "refusal to allow [him] to inspect original records and to provide [him] with copies on computer disks. " He explained:
Some of the records I requested came from computer disks. I asked to have them copied to disks that I provided, he refused [sic]. The information I was allowed to see was 3rd generation paper copies, incomplete, and various pages obviously were missing. Some records were fabricated for unknown reasons and were not the original records that I had requested.
In closing, Mr. Stone stated that he had not received a written denial from the district "to date."
Prompted by Mr. Stone's allegations, Superintendent Back elaborated on the district's position in a letter dated January 21, 2002. In response to Mr. Stone's allegation that he was not allowed to inspect "original records" or to obtain "copies on computer disks, " the superintendent stated:
Mr. Stone reviewed the documentation, asserting that he wanted the information provided on disks. He did not offer me disks at any time. The information exists with us in two forms; computer memory and hard copy (paper). Contrary to the accusation, at no time has any of the requested information been on disks. As to Mr. Stone's request to convert the information to disks, my understanding and response was that we could not be required to create records or forms of records not already in existence. The records were not, nor never were, on disks.
In response to Mr. Stone's allegation that pages were "missing, " the superintendent observed:
Mr. Stone indicated to me that part of the "missing" were the fax cover sheets. Those had been discarded upon fax completion, therefore not in existence. I indicated to Mr. Stone that he had before him the complete unaltered, full text , of his requests. He felt that there may be a page or two missing from the reports to Washington. My initial requests and subsequent investigation indicate that the documents placed before him, were total, complete , and full texts of the records requested.
(Emphasis in original.) In response to Mr. Stone's allegation that records were "fabricated, " the superintendent commented:
[Mr. Stone] noted to me that the identifying cover sheets 1 to two Washington reports were not part of the original reports to Washington. Those were attached to make identifications easier for Mr. Stone and myself.
In response to Mr. Stone's allegation that he received no written denial, the superintendent asserted:
I feel that we provided Mr. Stone with the full, complete, unaltered texts of his requests. The only record that was on computers was the e-mail request, for the month of November, of which there was only 1. The rest of the requested records are typed, filed paperwork, of which he had exact and complete texts. None of these exist on a computer or a disk. Our intent was to be a timely, complete, and legal compliance with the request.
He asked that the Attorney General advise him how to comply with the requirements of the Open Records Act if it is determined that he erred.
Mr. Stone contested Superintendent Back's supplemental response in a letter to this office dated January 25, 2002. The missing records, he stated, did not consist of facsimile transmission coversheets, but of "the minutes referenced in the minutes of 2/12/01, 1/25/01, and 4/16/01," 2 specifically, the minutes from the 2/2/01, 5/21/01, and 2/8/01 Russell High School Site Based Council meetings. The fabricated records, he maintained, did not consist of the Washington report cover sheets, but were instead "the Advisory Board membership lists for September and October" containing a written explanation that could not have appeared in the original lists because it was based on a regulation that Mrs. Maddox knew nothing about at the time the original lists were prepared. The copies of records received, he explained, were not copies of an original but were instead copies printed from the computer. It was his position that the district could "save the paper and the time by just dragging it to the disk drive."
We have devoted considerable time and attention to the correspondence exchanged by the parties and this office. We have done so not to lengthen this decision unnecessarily but to demonstrate the inadequacy of the written record before us. While it is certainly true that that record must consist of "a copy of the written request and a copy of the written response denying inspection, " KRS 61.880(2)(a), it is generally helpful, and in the present case essential, that the complaining party furnish this office with enough information to isolate the issues. It was not until we received Mr. Stone's January 25 letter that these issues crystallized. We now understand that he objects to the omission of site based council meeting minutes referenced in the minutes provided to him, the apparent creation of the membership lists for him in response to his request, and the production of paper copies of records that were generated electronically.
There is, and can be, little doubt that if minutes of the Russell High School site based council's 2001 special and regular meetings exist that Mr. Stone has not already received, the district is obligated to produce them for his inspection and copying. Mr. Stone provided us with copies of meeting minutes referencing meetings for which no minutes were provided. For example, the minutes of the council's January 25, 2001 meeting refer to "the next special meeting to review Council Policies [to be held] February 2, 2001, at 7:00 in the RHS Library," but Mr. Stone did not receive copies of the minutes of the February 2 special meeting. Superintendent Back offered no explanation for their omission. Clearly, if minutes exist for meetings held on February 2, February 8, and May 21, they must be released, and if no minutes exist some explanation must be given. KRS 61.835 expressly 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.
As this office has observed on more than one occasion:
The requirement that the agency record minutes of its meetings is triggered regardless of whether action is taken at a meeting. At a minimum, the minutes should reflect that the meeting was convened . . . and the meeting adjourned.
99-OMD-166, p. 4; see also, 00-OMD-96. We trust that the district will respond appropriately by providing Mr. Stone with the omitted meeting minutes or explaining why no minutes exist.
There is, and can be, little doubt that if Mrs. Maddox created an Advisory Board membership list in response to Mr. Stone's request, this action did not contravene the Open Records Act. Although this office has long recognized that "a person does not have a right to require a list to be made from public records if the list described does not already exist," OAG 76-375, p. 3, nothing in the Act prohibits an agency from doing so. See also, OAG 79-547, OAG 86-51, OAG 89-77, 95-ORD-82, 02-ORD-48. Although the record is not altogether clear, it appears that Ms. Maddox prepared the list for Mr. Stone at the time of his request and in an attempt to satisfy that request. She made no attempt to conceal the fact that it was prepared after October 2001, noting in a written disclaimer preceding the list:
At this point in the school year, we thought the grant advisory board could also be the Management Committee, but after reviewing the guidelines of the grant we found that the . . . advisory board had a prescriptive membership.
Mr. Stone intimates that an earlier version of the membership list exists. If this is the case, the district should make arrangements for him to inspect and copy the list notwithstanding the fact that it apparently contains inaccuracies. However, absent proof of an intent to mislead the public, we find no error in the district's response.
The final issue in this appeal does not lend itself to such easy resolution. Mr. Stone objects to the disclosure of district records in paper format when some or all of those records were electronically generated. The district responds that virtually none of the records released to him were permanently stored in district computers, and that it satisfied its statutory obligation by furnishing him with paper copies representing the official record. 3 In 99-ORD-38, this office addressed a similar issue. There, the requester demanded "currently effective and valid" city ordinances, resolutions, municipal orders and executive orders on 3.5 floppy disks. The city responded that although drafts and unofficial versions of these records might still be stored in its computers, these were preliminary records and not official public records. The requester countered that this argument was "a smoke screen . . . since the printed format [the city] maintains is an exact printout of the computer files."
The Attorney General rejected the requester's counterargument. We began by parsing the language of the pertinent open records provision, KRS 61.874(2):
Nonexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format. Nonexempt public records used for noncommercial purposes shall be copied in standard hard copy format where agencies currently maintain records in hard copy format. Agencies are not required to convert hard copy format records to electronic formats.
We recognized that "if nonexempt records exist in both standard electronic and standard hard copy format, the public agency must permit inspection of and copying in the format requested by the requester. " 99-ORD-12, p. 6. Continuing, we recognized that the obvious corollary of this position is that if the nonexempt records exist in only standard hard copy format, the agency must permit inspection of, and copying in, that format. We concluded that KRS 61.874(2) firmly establishes that "agencies are not required to convert hard copy format records to electronic format. " In rejecting the complainant's argument, we reasoned:
[T]he city has acknowledged . . . that unofficial, unexecuted drafts of current and past ordinances, resolutions, municipal orders, and executive orders are stored in the computers of the third party attorneys, state agencies, and other local agencies by whom they were authored. There is no searchable and comprehensive database of these records as officially adopted by the legislative body. While these unexecuted drafts may, in some cases, mirror the ordinance, resolution, or order that was adopted, they do not represent final action of the legislative body because they are not adopted and executed. To this extent, they retain their preliminary characterization, and qualify for exclusion from public inspection under KRS 61.878(1)(i), regardless of where they are reposited, as "preliminary drafts."
99-ORD-38, p. 4.
By the same token, most if not all of the records disclosed to Mr. Stone that were stored in the district's computers did not represent the official district record but were instead preliminary drafts of those records. For example, in a letter written by Jade Maddox that was directed to Superintendent Back and later furnished to this office, Mrs. Maddox explained that each of the Washington reports underwent substantial manual revision before they were formally submitted:
After I had the grant completed and ready to be mailed, I realized that each page had to be numbered and that I had too many pages to be sent in. I had to cut and glue the pages to make each page hold more. So the day that the grant had to be mailed, Mike and I sat in the floor of our house and cut and glued pages together to shorten the grant to fit their total page number criteria. We also glued a number with a gluestick in each right hand corner of the grant page.
Thus, the reports generated on Ms. Maddox's computer were preliminary drafts, exempt from disclosure pursuant to KRS 61.878(1)(i), and did not mirror the final reports formally submitted. Similarly, the minutes of site based council and Project F.A.M.I.L.Y Advisory Board meetings generated on district computers were not the minutes formally approved by the council and board and therefore qualified for exclusion as preliminary drafts pursuant to KRS 61.878(1)(i). Because the official records existed in hard copy format only, we do not believe the district was obligated to convert them to electronic format, and find no error in its decision to release the records to Mr. Stone in hard copy format.
Nevertheless, we believe that pursuant to KRS 61.880(1), it was incumbent on the district to explain to Mr. Stone that the records he sought in an electronic format either no longer existed in computer storage or represented preliminary drafts of the final official record, and therefore qualified for exclusion pursuant to KRS 61.878(1)(i). That exception authorizes nondisclosure of, among other things, "preliminary drafts." While we understand and appreciate that the district believed no written denial was necessary because it intended to afford Mr. Stone "complete" access to the records identified in his request, we must conclude that its January 8 response was deficient in failing to notify him that it could not afford him access to the records "in their original form" because they had either not been permanently stored in district computers or were preliminary drafts within the meaning of KRS 61.878(1)(i).
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 Superintendent Back provided us with copies of these coversheets. The first identifies "Washington Report # 1" and the second identifies "Washington Report # 2."
2 Mr. Stone provided us with copies of the minutes of meetings disclosed referencing the minutes of meetings not disclosed.
3 The only exception the district recognized was for the email communication between Ms. Maddox and her "Washington supervisor."