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 Phillips Elementary School violated the Open Records Act in the disposition of Aubrey Pennington's August 9, 2004, request to inspect all Site Based Decision Making Council minutes and agendas, including ad hoc committees, for meetings conducted during the period from 1999 to 2004, SBDM by-laws, SBDM policies, and the Phillips Elementary School CSIP for 2002 and 2004. For the reasons that follow, we find that the School's response was only partially consistent with the requirements of the Act.
By letter dated August 12, 2004, Principal Deva Jones notified Ms. Pennington that the requested records would "be on file at the Casey County Board of Education [on] August 17, 2004" and that Ms. Pennington could "review these documents anytime between the hours of 8 a.m. and 4 p.m." Ms. Pennington conducted a review of the documents on the designated date. One day later, she initiated this appeal asserting that "all documents requested had not been provided." Continuing, Ms. Pennington observed:
Ms. Jones letter did not indicate any of the requested records to be missing. Therefore, it was a fair assumption on my behalf that all documents requested had been provided.
Specifically, there were not any documents related to ad-hoc committee meeting minutes or agenda (e.g., standing committees, etc.) for the period 1999-2004 even though said committees were referenced in School By-laws and policies, as well as the Comprehensive School Improvement Plan (CSIP).
In light of these facts, Ms. Pennington requested the Attorney General's "assistance in the enforcement of the Open Records Law."
Shortly thereafter, Ms. Jones contacted Ms. Pennington by mail to advise that the requested records "were collected and placed on file" for her review. Turning to the subject of those records not produced, she explained:
In reference to the ad-hoc committee minutes that you stated were not provided, our by-laws state that "ad-hoc committees will be formed as needed." However, there have not been any committees of this nature formed in the time frame you requested. Therefore, the documents you requested do not exist. The standing committees, however, include academic performance and learning environment. Committee membership of these is attached.
Attached to Ms. Jones' supplemental response were two lists identifying the members of these committees. Ms. Jones did not address Ms. Pennington's concerns relating to the minutes of meetings conducted by these committees, or the agendas for these meetings that were not produced. To this extent, and to the extent that the School's earlier response failed to advise Ms. Pennington that some responsive records did not exist, Phillips Elementary School violated the Open Records Act.
Phillips Elementary School complied with KRS 61.880(1) in responding to Ms. Pennington's request in writing and within three business days, and in affording her timely, if not immediate, access to those records in its possession that were responsive to her request. Obviously, the School could not afford her access to records that did not exist such as minutes of, and agendas for, meetings of nonexistent committees. The school was, however, obligated to advise Ms. Pennington that those records were unavailable, due to their nonexistence, in its original response. On this issue, the Attorney General has observed:
[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [other citations omitted]. 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."
02-ORD-144, p. 3; 02-ORD-163; 04-ORD-150.
In supplemental correspondence, Ms. Jones explained that no ad hoc committees were formed in the period under consideration, and that therefore no records responsive to this portion of Ms. Pennington's request exist. In the absence of evidence to the contrary, we assume the truthfulness of this statement. Having affirmatively advised Ms. Pennington that her request for minutes and agendas of ad hoc committee meetings cannot be honored because no such records exist, the School discharged its statutory duty with respect to these records.
The School has not yet discharged its statutory duty with respect to Ms. Pennington's request for minutes of, and agendas for, the meetings of the Academic Performance Committee and Learning Environment Committee. If these records exist, they must be produced for immediate inspection. If these records do not exist, the School must so advise Ms. Pennington in writing. Until it does so, Phillips Elementary School 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.
Aubrey Pennington33 N. Hatfield Rd.Liberty, KY 42539
Deva Jones, PrincipalPhillips Elementary8439 W. KY 70Liberty, KY 42539
Linda Hatter, SuperintendentCasey County Schools1922 N. US 127Liberty, KY 42539