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 Ballard County School System violated the Open Records Act in the disposition of Anita Mosley's August 19, 2002, request for records generally described as "all correspondence regarding Chemical Environmental Solutions, Inc., or Wayne Mosley, that you may have sent or received for the year of 2002." For the reasons that follow, we find that although the school system provided this office with copies of "all correspondence Ballard County Board of Education has had with Wayne Mosley," the record before us does not reflect that it responded in writing to Ms. Mosley's request within three business days of receipt, or at any time thereafter, or that it provided Ms. Mosley with copies of the same records. Further, the record before us does not reflect that the school system conducted a search for all records identified in Ms. Mosley's request, but instead confined its search to the Board's correspondence with Mr. Mosley. To this extent, the Ballard County School System violated the Act.
In a letter addressed to this office, Edward A. Adami, Director of Pupil Personnel for the Ballard County School System, "forward[ed to the Attorney General] all correspondence Ballard County Board of Education has had with Wayne Mosley," consisting of Mr. Mosley's business card and a bid on chemical removal. Mr. Adami indicated that Mr. Mosley "follow[ed] up by phone to secure the business," but that the board "did not respond to his bid. " There is no indication in Mr. Adami's letter that a copy of his letter was mailed to Ms. Mosley, along with the attachments, and we must therefore assume that she received no copy.
From a procedural standpoint, the school system's disposition of Ms. Mosley's request was deficient. The procedures governing agency response to open records requests are set forth at KRS 61.880(1), which 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.
To the extent that the Ballard County School System failed to issue a written response to Ms. Mosley within three business days, the school system violated KRS 61.880(1). We remind the school system that the procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5.
The Ballard County School System produced for this office's inspection "all correspondence Ballard County Board of Education has had with Wayne Mosley." (Emphasis added.) As noted, there is no indication in the record before us that Ms. Mosley received a copy of the school system's response and attachments. Further, there is no indication in the record that the school system conducted a search for the records Ms. Mosley actually requested, namely "all correspondence regarding Chemical Environmental Solutions, Inc., or Wayne Mosley, that you may have sent or received for the year of 2002." A close reading of Ms. Mosley's request discloses that she did not seek records exchanged by Mr. Mosley and the Ballard County School System, but records exchanged by the Ballard County School System and any other school, school system, or school official relating to Mr. Mosley and his company, Chemical Environmental Solutions, Inc.
It is entirely possible that the Ballard County School System conducted a search for responsive records "using methods that [could] reasonably be expected to produce the records requested," 95-ORD-96, p. 7, and that the school system's search yielded no results. If this is the case, it is in all likelihood because it did not communicate with any other school, school system, or school official about Mr. Mosely or Chemical Environmental Solutions, Inc., or, alternatively, did not retain copies of its correspondence, and therefore no responsive records exist. In either case, the school system should have promptly notified Ms. Mosley, documented the steps it took in conducting its search, and briefly explained that no responsive records exist because no correspondence concerning Mr. Mosley and Chemical Environmental Solutions, Inc., was exchanged with other schools, school systems, or school officials, or the correspondence exchanged was not retained. On this issue, the Attorney General has consistently held, "If a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4; see also OAG 86-38; OAG 91-101; 01-ORD-131.
We remand this matter to the Ballard County School System. Consistent with the position set forth above, and if it has not already done so, the school system should conduct a search for records responsive to Ms. Mosley's request as framed, and notify her of the results.
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.