Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Phillips Elementary School violated the Kentucky Open Records Act in responding to the request of Aubrey Pennington "to review public documents related to the Phillips Elementary School SBDM Council" generated from August 1999 to August 2004. To the extent that Phillips Elementary School failed to comply with KRS 61.880(1), its response is procedurally deficient. With respect to those records which Phillips Elementary School has already made available for inspection, however, any related issues are now moot. Accordingly, this office must decline to issue a decision as to those records.
By letter dated August 24, 2004, Mr. Pennington requested to inspect the following records in accordance with KRS 61.835: 1
. All requests from the Phillips School SBDM Council to the Casey County Board of Education for a waiver of any district Board of Education policies.
. All correspondence from the SBDM Council, Chairperson, and/or Council Designee to Casey County District SBDM Coordinator, or designee.
. All Instructional and Non-Instructional Staff Plans and Reports, including all follow-up plans and reports, developed by the Phillips School Principal and submitted to the SBDM Council for approval.
. All School Space Plans prepared by the Phillips School Principal, including follow-up and revised plans, submitted to the SBDM Council for approval.
. All Committee, including standing and [ad hoc], sign-up sheets, membership lists, and notifications of committee membership submitted to the SBDM Council.
Alleging that Mrs. Deva Jones, Principal, did not respond to his request, Mr. Pennington initiated this appeal by letter dated August 30, 2004.
On August 30, 2004, Mrs. Jones forwarded a copy of her initial response dated August 27, 2004, to this office via facsimile. As explained by Mrs. Jones:
In compliance with KRS 61.835 and your request, the Phillips Elementary Site Based Decision Making Council documents you petitioned to view were placed on file in [their] entirety on August 17, 2004, at the Casey County Board of Education. Therefore[, any records responsive to your subsequent request], if in existence, would have been [included] in the compilation of these documents.
Upon receiving notification of Mr. Pennington's appeal, Mrs. Winter R. Huff, attorney, responded on behalf of Phillips Elementary School. In relevant part, Mrs. Huff advises this office that Mrs. Jones did, "contrary to Mr. Pennington's representations in his August 30, 2004 letter, respond to his August 24, 2004 request." Attached to Mrs. Huff's response are copies of letters from Mrs. Jones directed to Mr. Pennington on August 24, 2004, and August 27, 2004, respectively. 2 Without further elaboration, Mrs. Huff asserts that "all of the records mandated under applicable law have been made available to Mr. Pennington for his review." Noticeably lacking from the record on appeal is any evidence to support this position.
As a public agency, Phillips Elementary is obligated to comply with both the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or his purpose in requesting access to the records. KRS 61.880(1) dictates the procedure which a public agency must follow in responding to a request submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) 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. (Emphasis added).
In construing the mandatory language of this provision, the Kentucky Court of Appeals has observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-163; 04-ORD-106.
Although Phillips Elementary appears to have responded in a timely and proper fashion by indicating that all of the records which are responsive to Mr. Pennington's request are on file at the Board of Education, thereby fulfilling its statutory obligation in that vein, Phillips Elementary seemingly qualifies this assertion in arguing that all of the records "mandated under applicable law" have been made available to Mr. Pennington. If Phillips Elementary has elected to withhold any responsive records or any information contained in those records, as implied by its supplemental response, it must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof withheld, in accordance with KRS 61.880(1). 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As consistently recognized by the Attorney General:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. Denied 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
04-ORD-106, pp. 6, 7, citing 97-ORD-41, p. 6; 04-ORD-163. To the extent that Phillips Elementary failed to comply with this directive, its response was procedurally inconsistent with the Open Records Act. In responding to future requests, Phillips Elementary should be guided by the longstanding principle that the procedural requirements of the Open Records 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; 04-ORD-163; 04-ORD-080; 02-ORD-187.
In her letter dated August 27, 2004, Mrs. Jones advised Mr. Pennington that the requested records "were placed on file in [their] entirety" on August 17, 2004. Absent evidence to the contrary, therefore, this office assumes that Phillips Elementary has honored Mr. Pennington's request with the exception of those records which do not exist. 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." 04-ORD-046; 03-ORD-087. Consistent with this mandate, the Attorney General has long held that if access to public records is initially denied but subsequently granted, "the propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. Because any issues relative to the records which Phillips Elementary has already made available for inspection are now moot, this office must decline to issue a decision as to those records.
A party aggrieved by this decision may appeal it by initiating an 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 Elementary School8349 W. KY 70Liberty, KY 42539
Linda Hatter, SuperintendentCasey County Schools1922 U.S. 127Liberty, KY 42539
Winter Huff48 Public SquareP.O. Box 616Somerset, KY 42502-0616
Footnotes
Footnotes
1 KRS 61.835 provides:
The minutes of actions taken at every meeting of any such public agency [defined at KRS 61.805], setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body.
2 In 04-ORD-164, this office was asked to determine whether Phillips Elementary School violated the Open Records Act in its disposition of Mr. Pennington's request to inspect all SBDM Council meeting minutes and agendas, including those of ad hoc committees, for meetings conducted from 1999 to 2004, SBDM Council by-laws, including amended by-laws, SBDM Council policies, and the "Phillips Elementary CSIP for 2002 and 2004." Of relevance here, Mrs. Jones' response to that appeal, dated August 24, 2004, is identical to her letter of the same date which Mrs. Huff identifies as her initial response to the request which culminated in this appeal. According to Mrs. Jones, no ad hoc committees have been formed. It stands to reason, therefore, that the requested "sign-up sheets, membership lists and notifications of committee membership" of this type do not exist. As long recognized by the Attorney General:
[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. 6 [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. [citations omitted]
02-ORD-144, p. 3. By affirmatively indicating to Mr. Pennington that no records fitting this description exist in a timely response, Phillips Elementary discharged its statutory duty as to those records just as it did relative to Mr. Pennington's request for ad hoc committee records in 04-ORD-174.