Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Lincoln County High School violated the Open Records Act in the disposition of Keith Schillo's May 6, 2004 request for copies of various records in the high school's custody. For the reasons that follow, we find that the high school violated both the procedural and substantive requirements of the Act in denying Mr. Schillo access to the requested records.
In a letter addressed to Lincoln County High School Principal Ty Howard, Mr. Schillo requested copies of:
1. The agendas for each meeting of the [Smaller Learning Communities] Planning Team; 1
2. The newsletter distributed to parents to inform them of Lincoln County High School's intention to implement smaller learning communities;
3. Agendas for faculty meetings held on Wednesday, February 25, 2004 and Wednesday, May 5, 2004;
4. Schedule of regular faculty meetings for the 2003-2004 academic year.
On May 11, 2004, Mr. Howard denied Mr. Schillo's request, advising him as follows:
For item #1, please contact Dr. Dan Branham at Morehead State University for a copy of the agenda. He was the facilitator of the meeting and I do not have a copy of the agenda.
Items 2-4 are not subject to the Open Records law.
Shortly thereafter, Mr. Schillo initiated this appeal asserting that "the high school is a public agency, and therefore subject to the Open Records Law, " and "the items . . . requested are clearly 'public records'. . . and are not included in exceptions to open records."
In supplemental correspondence directed to this office following commencement of Mr. Schillo's appeal, Superintendent Teresa Wallace amplified on the high school's position. She observed:
Dr. Schillo is appealing Mr. Howard's opinion that because high school faculty meetings are not subject to the Open Meetings Act he is not required to provide a schedule of faculty meetings or copies of agendas.
Faculty meetings are called on an as needed basis and an agenda is not always provided. Because high school faculty meetings are not subject to the Open Meetings Act, I am of the opinion that a regular schedule of meetings and agendas are not required by law.
In closing, Superintendent Wallace acknowledged that Mr. Howard overlooked item number two in Mr. Schillo's request, and advised that a copy of the requested newsletter was mailed to him on June 15, 2004. With this exception, and the exception also noted below, we find that the high school's disposition of that request was both procedurally and substantively deficient.
In 04-OMD-082, the Attorney General determined that the Lincoln County High School faculty is not a public agency for purposes of the Open Meetings Act. Our decision was limited to an analysis of the faculty's obligations under the Open Meetings Act and did not address the high school's obligations under the Open Records Act. 04-OMD-082 cannot be construed to relieve the high school of its open records obligation. We concur with Mr. Schillo in his view that the Lincoln County High School is a public agency for open records purposes and therefore obligated to strictly comply with the letter of the Open Records Act.
The high school's statutory obligations are codified 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.
In
Edmondson v. Alig, Ky. App., 926 S.W.2d 956 (1996), the Kentucky Court of Appeals construed this language to require "the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson at 858. "A limited and perfunctory response" to an open records request, the court concluded, does not "even remotely compl[y] with the requirements of the Act. . . ." Id. Consistent with the longstanding position taken by this office that the requirements set forth at KRS 61.880(1) "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, we find that the high school's response to Mr. Schillo's request was deficient insofar as it did not "include a statement of the specific exception authorizing the withholding of the record[s] and a brief explanation of how the exception applies to the record withheld. " Mr. Howard's assertion that three of the four records requested "are not subject to the Open Records Law, " and Superintendent Wallace's subsequent assertion that faculty meeting schedules and agendas "are not required by law," do not represent legally recognized bases for denying Mr. Schillo's request. Accordingly, we find that the high school violated KRS 61.880(1) in denying that request.
KRS 61.870(2) defines the term "public record" as "all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. " Lincoln County High School belatedly acknowledged its duty to provide Mr. Schillo with a copy of the newsletter identified in his May 6 request, but continues to assert that it has no duty to produce faculty meeting agendas for the February 25 and May 4 faculty meetings and the schedule of regular faculty meetings for the 2003-2004 academic year. Such records, if they exist, are clearly public records for which no statutory exemption is, or in all likelihood, can be invoked. Although they are generated by and/or for a group to which the Open Meetings Act has been determined not to extend, they are records that are prepared, owned, used, and, at some juncture, in the possession of a public agency, namely, Lincoln County High School. If the requested records currently reside in the custody of the high school, they should be reproduced for Mr. Schillo. If the requested records do not currently reside in the custody of the high school, Mr. Schillo should be so advised in writing.
Although we can find no requirement for the retention of faculty meeting agendas or schedules in the Records Retention Schedule for Public School Districts approved by the State Archives and Records Commission, we note that Records Series L3006 and L3007 in that schedule require school-based decision making councils and their committees to retain meeting announcements for a period of three years. The Records Description and Analyses for those records series indicates that the contents of the records should include "agenda listing dates, time and location of meeting with a list of items to be discussed." By virtue of these retention requirements, the agendas for meetings of the Smaller Learning Communities Planning Team of the Lincoln County High School School-Based Decision Making Council should have been retained at the high school for three years. 2 Mr. Howard's admission that he does not have a copy of the SBDM committee agendas Mr. Schillo requests raises records management issues that we do not address here except to remind the high school that proper records management has been statutorily linked to records access under the Kentucky Open Records Act. KRS 61.8715. As is the case here, ineffective records management precludes records access.
Nevertheless, Lincoln County High School otherwise discharged its duty under KRS 61.872(4) by notifying Mr. Schillo that the high school does not have custody of the SLC Planning Team agendas and furnishing him with name and location of the records' "custodian" , Dr. Dan Branham. To this extent, the Lincoln County High School satisfied its statutory obligation under the Open Records Act.
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.
Distributed to:
Keith K. Schillo, Ph.D.1800 Brad Petrey RoadWaynesboro, KY 40489
Ty Howard, PrincipalLincoln County High School 60 Education WayStanford, KY 40484
Teresa Wallace, SuperintendentLincoln County High School 305 Danville AvenueP. O. Box 265Stanford, KY 40484
Footnotes
Footnotes
1 In 04-OMD-073, this office was asked to review the actions of the Lincoln County High School Smaller Learning Communities Planning Team. There, we learned that the Planning Team is "a subcommittee appointed by the School-Based Council to implement a federal grant at the high school. "
2 Assuming arguendo that Records Series L3006 and L3007 do not expressly require that meeting agendas be maintained on site for a period of three years, and are therefore inapplicable, we note that Record Series L4953 of the Local Government Records Retention Schedule, which supplements the specific agency schedule, requires local agencies to retain meeting notices and agendas for a period of one year.