Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Henderson County School District in response to the open records request of Clara Gabbard violated the Open Records Act. We conclude that, with the exception of a procedural violation, the response of the District did not violate the Act.
By letter dated May 17, 2002, Ms. Gabbard submitted a request for copies of:
1. Any and all Henderson County Board of Education approved policies, procedures, separate agreements or minutes from the meeting(s) wherein Mrs. Nancy Toombs is granted leave from her employment to conduct business for the Kentucky Education Support Professionals Association.
2. Total salary paid Mrs. Toombs under this contract year of employment.
In her letter of appeal, dated June 17, 2002, Ms. Gabbard stated that she had yet to receive a response to her request.
After receipt of Notification of the appeal and a copy of Ms. Gabbard's letter of appeal, John S. Hoffman, counsel for the District, submitted a response to the issues raised in the appeal. In his response, Mr. Hoffman, in relevant part, advised:
In May, Clara Gabbard sent an open records request to Superintendent Vaughan. In keeping with our procedure for handling open records requests, Superintendent Vaughan distributed the request to those responsible for providing the response.
It is also customary in our district for school personnel to gather the information sought in an open records request, and then send the request and the information gathered in response to me. I, in turn, make the official response for the district.
Somewhere along the way, the request simply fell through the cracks. There was certainly no intent on the part of anybody in this district to withhold the information that Ms. Gabbard requested. This district receives, and timely responds to, open records requests on a regular basis. Most of these requests are far more complicated than this request. I can assure you that there was no sinister reason for not timely responding to Ms. Gabbard's request.
However, we do not have any papers that match her request as stated in numerical paragraph 1. I do note, however, that it is the unwritten policy of this district to encourage all school personnel to become involved in professional and community activities.
The salary of the person mentioned in the request (Nancy Toomes) is subject to public scrutiny and that information is enclosed herewith.
Mr. Hoffman's response indicates that a copy of his response and enclosure was also provided to Ms. Gabbard.
We are asked to determine whether the actions of the District in response to Ms. Gabbard's request violated the Open Records Act. For the reasons that follow, we conclude, that with the exception of a procedural violation, the District's actions did not constitute a substantive violation of the Act.
KRS 61.880(1) requires that an agency respond to an open records request in writing within three business days after its receipt. The District admits that its response was outside this requirement, but explained how this was inconsistent with its normal practice and procedure of timely responding to open records requests. Under the circumstances of this case, we conclude this was a procedural violation of the Open Records Act, but find no evidence of an attempt to subvert the intent of the Act.
Addressing the substantive issues, this office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. Obviously, a public agency cannot afford a requester access to records that it does not have. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150.
The District, in its response to this office with a copy to Ms. Gabbard, advised that it did not have any records as stated in numerical paragraph 1 of her request. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
The District provided Ms. Gabbard with the requested information relative to her request in numerical paragraph 2 for the amount of Ms. Toombs' annual salary. Thus, the appeal is moot as to that issue. 40 KAR 1:030, Section 6.
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 proceeding.
Clara Gabbard1 S. Oak Hill DriveJackson, KY 41339
John W. VaughanSuperintendentHenderson County Schools1805 Second StreetHenderson, KY 42420
John S. HoffmanStoll, Keenon & Park201 C North Main StreetHenderson, KY 42420-3103
Brenda AllenEducational Professional Standards Board1024 Capital Center Dr., Ste. 225Frankfort, KY 40601