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 the Perry County Board of Education violated the Open Records Act in the disposition of John C. Combs' and Paul Alexander's request for "a copy of any documents [Chairman Donnie R. Spencer] and members Fugate and Fields used or reviewed to evaluate the populations of the precincts in each of our school divisions in Perry County . . . [and] the document [Chairman Spencer] and members Fugate and Fields read from last Friday night . . . ." For the reasons that follow, we find that the Board's disposition of their request constituted a violation of the Act.
Messrs. Combs' and Alexander's undated letter was apparently served on Chairman Spencer on August 2, 2004. The subject line clearly indicates that the letter contains "Open Records Act Requests" and the introductory paragraph states, "[We are] writing this to make 2 Open Records Act requests . . . ." Paragraph 2 of the letter contains the description of the requested records set forth above. Messrs. Combs and Alexander indicate that the letter was hand-delivered to Chairman Spencer who "after reading the document . . . refused to accept it and . . . returned [it] to [them]." On this basis, Messrs. Combs and Alexander immediately initiated an appeal.
In correspondence directed to this office following commencement of the appeal, Board Attorney Alison Wells acknowledged that the letter was delivered to Chairman Spencer on August 2, but indicated that "[h]e directed the persons who delivered [it] to bring the document to [Ms. Wells] so that we could take the appropriate action." Further, she indicated:
[P]rior to having an opportunity to speak with [Chairman] Spencer about the letter, I received the letter dated August 2, 2004, directed to the Kentucky Attorney General, Hon. Greg Stumbo.
Attached to Ms. Wells' letter to this office was a copy of "a document which Stu Fugate prepared prior to the meeting of July 30, 2004." 1 She indicated that "Mr. Fugate read from [the document] when he made the motion to redistrict," and that it was her understanding "that he placed copies of the [document] on the table for consideration by all who were present." Ms. Wells concluded that "[t]here was no refusal to share the document." Because the Board failed to comply with KRS 61.880(1) in its initial disposition of Messrs. Combs' and Alexander's requests, and because the Board did not expressly state, in the ultimate disposition of those requests, that no additional responsive records exist, we find that it violated the Open Records Act.
The Perry County Board of Education's failure to respond to Messrs. Combs' and Alexander's open records requests in writing and within three business days constituted a violation of 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.
Those requests were clearly identified as requests submitted under authority of the Open Records Act. Assuming for the sake of argument that the Chairman's refusal to accept delivery of the requests was not tantamount to a denial of the requests, this office did not issue notification of receipt of Messrs. Combs' and Alexander's appeal until three days had elapsed. 2 Their arguably premature attempt to initiate an appeal did not relieve the agency of its statutory duty under KRS 61.880(1) . We urge the Board to review the cited provision to insure that future responses conform to the Open Records Act.
Sometime after receiving notification of receipt of Messrs. Combs' and Alexander's appeals, the Board produced a single document, the contents of which are set forth at note 1 above, and apparently furnished them with a copy. The Board did not indicate that additional responsive records exist or otherwise respond to their multiple requests. This office has repeatedly recognized that agency denial of an open records request can be premised on the nonexistence of the records requested. In such cases, we believe it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9; 02-ORD-144, p. 3; 02-ORD-163, p. 2-3. As noted in these decisions, while it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient. Until such time as the Board notifies Messrs. Combs and Alexander that no additional responsive records exist, or alternatively produces any remaining responsive records, it has not fully discharged its statutory duty and is in violation of 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 proceeding.
John C. CombsPerry County Schools315 Park AvenueHazard, KY 41701
Paul AlexanderPerry County Schools315 Park AvenueHazard, KY 41701
Mr. Donnie R. Spencerc/o Supt. John Paul AmisPerry County Board of Education315 Park AvenueHazard, KY 41701
John Paul Amis, Supt.Perry County Board of Education315 Park AvenueHazard, KY 41701
Alison C. Wells113 Lovern StreetP. O. Drawer 1017Hazard, KY 41702
Footnotes
Footnotes
1 That document reads in full:
I move that we change the School Board Districts as follows:
Add Dice to School Board District # 1
Add Yerkes to School Board District # 2
Add Bonnyman to School Board District # 3
Add Medical Center to School Board District # 4
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
2 We received the appeal at 4:29 p.m. on August 2, 2004. We issued our notification of appeal on August 6, 2004.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -