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 Bourbon County Schools violated the Open Records Act in the disposition of James M. Lovell's February 4, 2002 records request. For the reasons that follow, we find that although the facts presented in the record on appeal are disputed, the weight of the evidence presented indicates that the Bourbon County Schools did not discharge its obligations under the Open Records Act by making complete disclosure of the records identified in subpart 2 of Mr. Lovell's February 4 request until after Mr. Lovell initiated this appeal. 1 However, in light of the paucity of information in the record on appeal, we are unable to resolve disputes concerning "other documents that the Superintendent . . . failed to deliver to Mr. Lovell "referenced in Mr. Lovell's March 25, 2002 affidavit.
In his February 4 records request, Mr. Lovell asked to inspect six categories of records maintained by the Bourbon County Schools including:
A copy of any and all bills or invoices and checks by which they were paid for the construction and erection of the football training facility or any part thereof [and] the provision of any furniture, equipment or personal property located in the facility.
On appeal, Mr. Lovell does not object to the Bourbon County Schools' partial denial of other portions of his request, 2 but instead focuses on the Schools' failure to furnish him with records relating to the installation of an air conditioning system in the football training facility. He provided this office with copies of all invoices released to him, which did not include invoices relating to installation of the system, but noted that he was advised by a member of the Board of Education at a public meeting on Tuesday, February 12, 2002, and in the presence of the Superintendent, that the Board "had in addition paid for air conditioning for this facility." Further, he noted that in a November 9, 2001 memorandum to the members of the Bourbon County Board of Education, "The Superintendent states, in item 6 'the athletic facility is scheduled to receive HVAC installation beginning November 12, 2001.'" Mr. Lovell did not provide this office with a copy of the November 9 memorandum.
In a supplemental response directed to this office following commencement of Mr. Lovell's appeal, Superintendent Carter briefly elaborated on the Bourbon County Schools' position. He explained:
When we received the subject request from the complaining party, we conducted a thorough review of our files, and forwarded a copy of each document we could locate in response to item # 2. We are doing the same as of this date. It is my belief that we did in fact forward the document in question and the response to item # 2 of the subject request was complete. (See 12/31/01 payment request re: BCHS fieldhouse heat, Milton B. Lovell Plumbing & Heating, Inc.) 3 Regardless, we are once again forwarding responsive documents by way of this letter.
Superintendent Carter suggested that for these reasons, "there is no need to issue a decision in this matter . . . ."
Shortly thereafter, Mr. Lovell submitted an affidavit to this office in which he stated that he did not receive a copy of the Milton B. Lovell Plumbing & Heating, Inc. payment request along with the other documents released to him on February 11. Acknowledging that he is unaware of what remedies exist when a public official "fails to completely and accurately respond to an open records request," he asked that "at the very least Mr. Carter be placed under oath to state what he did in fact furnish to [Mr. Lovell]."
This office is not empowered to require Superintendent Carter to state under oath what records he furnished to Mr. Lovell on February 11, and must instead rely on the written record before us in determining whether the Bourbon County Schools violated the Open Records Act by failing to release all responsive records. However, Mr. Lovell having stated in an unrebutted affidavit that the Milton B. Lovell Plumbing and Heating, Inc. payment request was not disclosed to him on that date, and Superintendent Carter having only expressed the "belief" that the payment request was disclosed, we find that the record supports Mr. Lovell's position that the Bourbon County Schools did not fully discharge its duties under the Open Records Act by making complete disclosure of the records identified in subpart 2 of Mr. Lovell's February 4 request. The record before us does not, however, support the conclusion that the omission of the payment request was intentional. If evidence of willful concealment of the record exists, Mr. Lovell may wish to consider his options under KRS 61.991(2)(a).
Mr. Lovell acknowledges that some records have been released to him, but states in his affidavit that he "has reason to believe there are other documents that the Superintendent has failed to deliver . . . pursuant to this request of February 4, 2002." He does not, however, identify those records. The Bourbon County Schools maintain that all existing, nonexempt records have now been released. "This office cannot . . . adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. "OAG 89-81, p. 9. In the absence of specific evidence that the Bourbon County Schools concealed records that are responsive to Mr. Lovell's request, we must assume that the agency is now in compliance with the Act. Here, as in OAG 89-81, we trust that "any dispute regarding the records can be worked out through patient consultation and cooperation between the parties." OAG 89-81, p. 9.
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 We note, at the outset, that Mr. Lovell's concerns relating to possible irregularities in public bidding are not an appropriate subject for resolution in an open records appeal. If Mr. Lovell wishes to pursue this issue, he should contact a law enforcement agency.
2 The Bourbon County School System's February 11 response consists of two documents: a fax cover sheet from an individual identified as "Paulette" and a four page letter from Superintendent Arnold W. Carter. The fax cover sheet advises Mr. Lovell that although the requested records are available, subpart 3 of his request, relating to utility bills for the football training facility, cannot be honored because all utilities are paid in a single bill, and no specific bills exist for the football facility. The letter from Superintendent Carter notifies Mr. Lovell that records identified in subpart 6 of his request, relating to tape recordings made by the superintendent, will not be disclosed on the basis of KRS 61.878(1)(i) and (j), and describes, in considerable detail, the nature of the tapes withheld. In all, the Bourbon County Schools furnished Mr. Lovell with 84 pages of responsive records.
3 Superintendent Carter provided this office with a copy of the December 31, 2001 payment request submitted by Milton B. Lovell Plumbing & Heating, Inc. for the BCHS Fieldhouse Heat Project.