Opinion
Opinion By: A. B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Fort Thomas Independent School District violated the Open Records Act in the disposition of Cheryl Hansman's July 11, 2002 request for "all evidence and attachments [relating to her September 21, 2001 formal complaint] sent to the Kentucky Department of Education by Fort Thomas [Independent School] District including but not limited to any documents and/or exhibits that were submitted even if later withdrawn." Ms. Hansman received no written response to her request prompting her to initiate this appeal. For the reasons that follow, we find that the District's disposition of Ms. Hansman's request was procedurally deficient. Further, we find that although it is clear that the District has afforded Ms. Hansman access to a large number of records in response to this request, as well as other requests, it is by no means clear that it has identified, segregated, and disclosed the specific records identified in the July 11 request that is the subject of this appeal.
In a response directed to this office following commencement of Ms. Hansman's appeal, Assistant Superintendent for Student Services Rita Byrd and Director of Special Education Mary Lou Simpson defended the District's actions in the handling of this, and several other, open records requests submitted by Ms. Hansman. They explained:
The Fort Thomas Independent School District has not only provided the records Ms. Hansman requested, but has done so in a timely manner. This is true even though the request was addressed to the wrong individual. Accordingly, the district could have responded merely by pointing out to Ms. Hansman that her request was addressed to the wrong individual. 1
The following chronology, along with supporting documentation, support this:
July 11, 2002
A request for records related to the September 21, 2001, [sic] was hand delivered to central office. (Exhibit A)
July 11, 2002
Rita Byrd saw Cheryl Hansman as she was leaving central office. During a brief conversation, Ms. Byrd told Ms. Hansman that other requested records were being copied and asked if Ms. Hansman wanted to pick-up the records or if she wanted them mailed to her. Ms. Hansman responded that she would pick-up the records and to call her when they are ready.
July 11 & 14, 2002
Due to the fact that Ms. Byrd and Ms. Simpson would be out of the office early the week of July 15th, they immediately began work on complying with the Open Records Request. Copies of the requested materials were made and left for Kathy Tipton, administrative assistant, to complete on July 15, 2002.
July 15, 2002
Ms. Tipton numbered the copied records from C-1 to C-150 and made a copy for central office documentation. At 2:33 p.m. she called Ms. Hansman to inform her that educational records were available for pick-up at central office.
July 16, 2002
The records were picked-up. In addition, educational records for the 1997-98, 1998-99, 1999-00, 2000-01 school years were provided. A letter prepared by Mary Lou Simpson accompanied the files. (Exhibit B) 2
July 18, 2002
Copies of educational records for the 2001-02 were completed per Ms. Hansman's request received June 13, 2001. A letter prepared by Ms. Byrd accompanied the records. This letter contained a statement about the Open Records request in question. (Exhibit C) 3
July 19, 2002
Ms. Byrd called the Hansman residence to let Ms. Hansman know educational records were available. When told Ms. Hansman was not available, Ms. Byrd left a message for Ms. Hansman to return the call.
July 19, 2002
Ms. Byrd received yet another Open Records request from Ms. Hansman. This letter was shared with Larry Stinson, Superintendent of the Fort Thomas Independent School.
July 23, 2002
Dr. Stinson responded to Ms. Hansman's request received on July 19, 2002. Don Ruberg, board attorney, provided legal assistance with the preparation of this letter (Exhibit D)
July 24, 2002
When Ms. Byrd did not receive a return phone call, the educational records for the 2001-02 school year were mailed to Ms. Hansman. (Exhibit E)
In closing, Ms. Byrd and Ms. Simpson stated that the District had furnished Ms. Hansman with 1,300 pages of records in the last month, noting that "[s]everal records have been copied as many as three times." Recognizing "the complexity of the records," and questioning whether "Ms. Hansman understands the sequence of the records," they expressed their willingness to "meet with her to explain the records and identify strategies for resolving her issues and concerns."
Shortly after the District submitted this letter, Ms. Hansman responded, identifying several apparent inconsistencies in that letter. She advised:
Personal correspondence, from February, March, May, June, and July of 2002 would not have been sent prior to 12/21/2001.
Minutes, agendas, and data from ARC meetings from January, February, and May of 2002 would not have been sent prior to 12/21/2001.
Applications, information, and enrollment forms for Springer School that were not even applied for until after May 28, 2002 did not happen prior to 12/21/2001.
A new formal complaint that I filed in February of 2002 could not be considered evidence prior to 12/21/2001.
Emails, notes and information on possible summer classes they were going to offer my son with the earliest date being from 02/14/2002 would not be evidence prior to 12/21/2001.
A sales receipt showing the cost to send a box of educational records from the school year 2001-2002 which just ended this June of 2002 would not be evidence prior to 12/21/2002.
Of the 150 pages contained in the C-1 through C-150 evidence identified by Rita Byrd 111 pages dealt with a time frame that had not yet occurred on 12/21/2001. These 111 pages submitted by Fort Thomas District to me were in no way pertinent to what I asked for in my Open Records Request.
In response to the District's assertion that her July 11 request was misdirected, Ms. Hansman acknowledged her error but indicated that Ms. Byrd "is normally the one who responds concerning business," and that Ms. Byrd had recently advised her that "if there was anything else she could do . . . to just let her know." Ms. Hansman attached a copy of a written apology directed to Superintendent Stinson.
We begin by noting that the District did not properly respond to Ms. Hansman's July 11 request. Procedural guidelines for agency response to open records requests are codified at KRS 61.880(1). 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 language of the statute directing agency action is exact." Edmondson v. Aliz, Ky.App., 926 S.W.2d 856, 858 (1996). It requires a timely written response to the person making the request accompanied by the requested records 4 or a statement of the specific exception authorizing nondisclosure.
The record before us reflects that the District did not respond in writing, and within three business days, to Ms. Hansman's request. Although the District issued a response on July 11, that response referenced an earlier request (June 22, 2002), and was not responsive to her July 11 request. Ms. Byrd's "brief conversation" with Ms. Hansman on July 11 was not sufficient to discharge the District's duties under KRS 61.880(1). It was not until July 18 that the District acknowledged Ms. Hansman's July 11 request in writing. That letter responded to Ms. Hansman's June 13 request, and only tangentially mentioned that she "had previously requested records pertaining to the September 21, 2001 complaint," and that "[t]hose records were given to [her] earlier [that] week and [were] not included a second time. "
The record further reflects that a group of documents numbered C-1 through C-150 were compiled for Ms. Hansman by July 15 and released to her on July 16, Ms. Hansman having been notified that "educational records" were available for pick-up at the District's central office. As noted in footnote 3, the accompanying letter was dated July 11 and made no reference to the request Ms. Hansman submitted on July 11, but instead referenced educational records for the 1997-2001 school years which were simultaneously disclosed. Inasmuch as, upon inspection of the documents numbered C-1 through C-150, Ms. Hansman determined that only 39 of the 150 numbered pages were generated prior to the December 21, 2001 "Report of Findings" issued by the Department of Education to Ms. Hansman's September, 2001 complaint, and therefore could not have been responsive to her July 11 request, she was understandably unconvinced that the records disclosed satisfied the request that is the subject of this appeal.
We believe it was incumbent on the Fort Thomas Independent School District to respond, in writing, to Ms. Hansman's July 11 request on or before July 16 and to provide her with "the evidence and attachments [relating to her September 21, 2001 formal complaint which the District] sent to the Kentucky Department of Education." The District appears to have treated as responsive to this particular request, inter alia, correspondence generated in the period from February through July 2002, minutes, agendas, and data from ARC meetings conducted in January, February, and May, 2002, a complaint she filed in February 2002, and emails generated after February 14, 2002. Ms. Hansman's confusion was compounded by the simultaneous disclosure of "educational records" for the 1997-2001 school years and the omission of any reference to Ms. Hansman's July 11 request in Ms. Simpson's accompanying letter. We continue to ascribe to the view that public agency employees are not required to provide instruction in understanding the meaning or import of information which appears upon records produced, but believe that in this instance the commingling of requests and the volume of records produced precluded the requester from conducting her own meaningful review. OAG 89-91. In sum, we find that the District's efforts fell short of the statutory requirements codified at KRS 61.880(1).
It is, therefore, our opinion that the Fort Thomas Independent School District is obligated to furnish Ms. Hansman with only those records submitted to the Department of Education in response to Ms. Hansman's September 21 complaint and prior to the December 21, 2001 Report of Findings issued by Ava Crow, 5 including, for example, the "supplemental documentation . . . requested and obtained from the district after the on-site visit" referenced at page 2 of the report. Alternatively, and with Ms. Hansman's agreement, District employees may meet with Ms. Hansman to identify and cull out that discrete set of records from the 1,300 records already disclosed that is responsive to her July 11 request. If no additional responsive records exist, the District should specifically so indicate. OAG 86-38; OAG 90-26, OAG 91-101; 01-ORD-51. While it is apparent that the District has expended considerable effort in order to satisfy Ms. Hansman's multiple requests by providing over 1,300 pages of records to her, these efforts have resulted in understandable confusion and frustration arising from the commingling of responses and records in disposing of separate requests. For clarity's sake, we urge the District to focus on her July 11 request only.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5)(a). 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.
Footnotes
Footnotes
1 Unless evidence exists that Ms. Hansman was on specific notice that the Superintendent is the designated records custodian for the District and she simply ignored this fact, we do not agree that the District would have discharged its duty under KRS 61.880(1) by simply pointing out to Ms. Hansman that her request was directed to the wrong individual. Instead, we believe that the District employees to whom the request was directed would have been obligated to immediately forward the request to the records custodian for timely response. See 98-ORD-64.
2 The letter identified as "Exhibit B" is dated July 11, 2002, is directed to Ms. Hansman from Ms. Simpson, and apparently contained "files for the 1997-1998, 1998-1999, 1999-2000, and 2000-2001 school years." In it, Ms. Simpson references a June 22 request, but makes no reference to the July 11 request at issue in this appeal.
3 Ms. Byrd's July 18 letter to Ms. Hansman advises Ms. Hansman that Ms. Byrd is responding to Ms. Hansman's June 13 letter, and enclosing "files and information pertaining to [Ms. Hansman's son's] 2001-02 school year, " including "education records" and "information relative to each complaint . . . filed." Ms. Byrd acknowledges that "much of the information is duplicative." With reference to Ms. Hansman's "previous [] request [] [for] records pertaining to the September 21, 2001 complaint [Ms. Hansman] filed with the Kentucky Department of Education," Ms. Byrd indicated that "[t]hose records were given to [Ms. Hansman] earlier this week and are not included a second time. "
4 Any extension of the three-day deadline for releasing records, due to the fact that the records are "in active use, in storage, or not otherwise available" must be accompanied by "a detailed explanation of the cause . . . and the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.872(5).
5 Assistant General Counsel, Office of Legal and Legislative Services of the Department of Education.