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 Public School District violated the Open Records Act in the disposition of James M. Lovell's May 1, 2002 records request. Because the records access question was mooted by full disclosure of the records identified in the request after this appeal was initiated, the only question in dispute relates to the timeliness of the agency's response. 40 KAR 1:030 Section 6. On behalf of the Bourbon County Public School District, Superintendent Arnold W. Carter and two district employees have submitted affidavits in which they state that they first became aware of Mr. Lovell's May 1, 2002 open records request when, on May 9, 2002, they received notification of his May 7, 2002 appeal, to which a copy of the May 1 request was attached, from this office. Mr. Lovell has submitted an affidavit contradicting these statements. He states that he transmitted the request to the District by facsimile on May 1, and that his fax machine log confirms transmission on May 1.
The Attorney General cannot resolve a factual dispute concerning the actual delivery and receipt of Mr. Lovell's May 1 open records request. Although he maintains that the request was faxed to the district, he offers no proof of receipt. Superintendent Carter and two district employees state that the request did not reach the Bourbon County Public School District and that the district has no record of receipt. Clearly, the Bourbon County Public School District is legally obligated to comply with KRS 61.880(1) by responding to open records requests it receives within three business days and disclosing nonexempt public records requested or stating the specific exception authorizing nondisclosure and providing a brief explanation of how the exception applies to the record withheld. If, however, Mr. Lovell's request did not reach the District, for whatever reason, that agency cannot be faulted for its failure to respond. The conflicting evidentiary record precludes us from resolving this matter in favor of either of these parties.
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.
James M. LovellP. O. Box 521509 Pleasant StreetParis, KY 40362-0521
Woodrow CarterSuperintendentBourbon County Schools3343 Lexington RoadParis, KY 40361
John C. Fogle, IIIChenoweth Law Office121 Bridge StreetFrankfort, KY 40601