Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Scott County Board of Education violated the Kentucky Open Records Act in denying the request of Aaron L. Wilson for copies of specified policies relating to the employment of substitute teachers. In failing to issue a written response within three business days as mandated by KRS 61.880(1), the Board committed a procedural violation of the Act. Likewise, the Board erred in declining to honor Mr. Wilson's request merely because the records are available electronically and hard copies can be acquired at the public library. In sum, the Board's response was procedurally deficient and substantively incorrect.
Following a series of exchanges via electronic mail between Mr. Wilson, Randy Napier, and Ann Brock concerning the matter, 1 Mr. Wilson directed a request to inspect the following records to Dr. Dallas J. Blankenship, Superintendent, on November 10, 2005:
1. All policies that the [B]oard has enacted pertaining to the reemployment of substitute teachers;
2. All policies that the [B]oard has enacted pertaining to the employment of retired teachers, from both within and outside SCPS, as substitute teachers [;]
3. The policies that Ann Brock mentioned to me on October 25, 2005 and Randy Napier mentioned to me on November 8, 2005 which provide for the omission of my name from the current Substitute List.
In closing, Mr. Wilson emphasized that "[t]ime is of the essence."
On November 16, 2005, Mr. Napier responded to Mr. Wilson's request via e-mail, reiterating the option of accessing the policy at http://policy.ksba.org/s02/. Mr. Napier "understood" that Mr. Wilson would review the policies "in that manner." In the alternative, Mr. Napier advised Mr. Wilson that a hard copy of the policy is maintained at thePublic Library. Having advised Mr. Wilson as to the requirement of undergoing another "Criminal Records Check" at his expense, Mr. Napier referred Mr. Wilson to Rocky McClintock, Board attorney, for assistance with "any further questions on this matter." By letter of the same date, Mr. Wilson initiated this appeal, arguing that Dr. Blankenship had not responded to his request within the statutory timeframe.
Upon receiving notification of Mr. Wilson's appeal from this office, Mr. McClintock responded on behalf of the Board, disagreeing with Mr. Wilson's characterization of the Board's response. As Mr. McClintock observes, Mr. Napier informed Mr. Wilson that "the board policies were available [online] , and gave him the link on at least two occasions." In addition, Mr. Wilson "was informed that a copy of the board policy was available at the Public Library. " As evidenced by the attached e-mails, Mr. Wilson has "been to that site." 2 According to Mr. McClintock, the records requested are "open to the public on a daily basis," and Mr. Wilson was advised "how to access those at his convenience." In the Board's view, this procedure is "in compliance with" the Open Records Act and Mr. Wilson's request. Having reviewed the relevant authorities, this office respectfully disagrees. 3
As a public agency, the Board is obligated to comply with 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 requests 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 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-181, p. 4; 04-ORD-163; 04-ORD-106.
By its express terms, KRS 61.880(1) requires a public agency to issue a written response within three business days of receiving a request. In general, a public agency cannot postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day response time codified at KRS 61.880(1); the Act envisions production of records on the third business day after receipt of the request rather than simply notification that the agency will comply. See 05-ORD-134, pp. 3-5. Although the burden on the agency to respond within three working days is, not infrequently, an onerous one, the only exceptions to this general rule are found at KRS 61.872(4) and (5), neither of which the Board invoked here. 02-ORD-165, p. 3.
As consistently recognized by the Attorney General, the procedural requirements codified 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." 03-ORD-067, p. 2, citing 93-ORD-125, p. 5. Failing to respond in a timely and proper fashion, as the Board did here, constitutes a clear violation of KRS 61.880(1). In short, compliance with these procedural guidelines is mandatory, and is as much of a duty owed by a public agency as the provision of other services to the public. Id. To avoid future violations, the Board should respond within three business days in writing to requests, including a statement of the specific exception(s) authorizing the withholding of any responsive records, and a brief explanation of how the exception(s) applies to the records withheld; in the alternative, the Board is required to provide a detailed explanation of the cause for delay and designate the place, time, and earliest date on which the records will be available for inspection in accordance with KRS 61.872(5). 4
Guidelines for inspection of public records pursuant to the Open Records Act are codified at KRS 61.872. Of particular relevance here, KRS 61.872 provides:
(1) All public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right. No person shall remove original copies of public records from the offices of any public agency without the written permission of the official custodian of the record.
(2) Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
(3) A person may inspect the public records:
In other words, the Open Records Act contemplates access to records "by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. " 03-ORD-067, p. 4. Therefore, a requester that both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. Id. On the other hand, a "requester whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of the records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52, 96-ORD-186." Id., p. 5; 04-ORD-011. See 02-ORD-26, p. 6, for discussion of the greater burden imposed upon requesters seeking to receive copies through the mail.
As previously recognized by the Attorney General, the only exceptions to this general rule are found at KRS 61.872(4), (5), and (6). 95-ORD-52, p. 2. If the person to whom the request is directed does not have "custody or control" of the records, he or she is obligated to notify the requester and furnish the name and location of the custodial agency per KRS 61.872(4). If the records requested are "in active use, in storage or not otherwise available," the official custodian must immediately notify the requester, and specify a place as well as the earliest date and time on which the records will be available for inspection to invoke KRS 61.872(5). If complying with the request will place an unreasonable burden on the agency, or the custodian believes that repeated requests are intended to disrupt essential functions of the agency, he or she may refuse to permit inspection or mail copies of the records pursuant to KRS 61.872(6); such a refusal must be sustained by clear and convincing evidence.
Having failed to invoke any of these "exceptions" to the general rule of inspection or copying, the Board must permit Mr. Wilson to inspect the requested record(s) and/or produce copies to be mailed upon receipt of all fees and the cost of mailing in order to comply with the Open Records Act. In the unlikely event that original copies of the records are not maintained by the Board (which the Board does not contend), the Board is required to secure and produce specifically described public records like those at issue; regardless of whether the records are stored at another location or also available elsewhere, (electronically or in hard copy form) the Board "cannot avoid this requirement by directing the requester to conduct his own search" at the library. 95-ORD-52, p. 5 (concluding at pp. 1-2 that a public agency "must retrieve the records in order to make them available for inspection or copying, and that the [agency's] attempt to satisfy the Open Records Act by directing [the requester] to the King Library constituted a violation of the Act"). In our view, 95-ORD-52 is controlling on the facts presented.
In the same vein, this office subsequently rejected the argument that a public agency which prepares, owns, uses, possesses, or retains a public record is relieved of its clearly established duties under the Open Records Act merely because another agency from which it can be more easily obtained has physical custody. 98-ORD-100, p. 3; 99-ORD-10. There, the Lexington-Fayette Urban County Government asserted that it was the "casual possessor" of records in the custody of another agency, rather than the "official custodian, " and therefore could not honor a request for those records. Relying upon the definition of "public record" codified at KRS 61.870(2), and a series of prior decisions, the Attorney General held:
. . .[N]o specific exception to the Open Records Act authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency [such as the public library] , even if the requested records might more appropriately or more easily be obtained from that other public agency.
98-ORD-100, p. 3, citing OAG 91-21, p. 4 (holding that the City of Owensboro improperly denied a requester access to records in its custody although those records were "the responsibility of the State and County"); OAG 90-71 (holding that the Kentucky Board of Pharmacy improperly refused to release salary records of its employees on the grounds that the records could more appropriately be obtained through the Department of Personnel); 96-ORD-7 (holding that the Department of Corrections improperly referred an inmate to the institutional records office to receive a copy of his resident record card when it also had custody of the card); 98-ORD-17 (holding that the Jefferson County Sheriff's denial of a request for audits of his office would be improper if his office maintained a copies of the audits in addition to those copies in the custody of the Revenue Cabinet). As evidenced by the foregoing, the concept of "casual possession," which has no statutory basis, has been all but abandoned.
More recently, the Attorney General questioned whether furnishing a requester with a website address where records responsive to his or her request can be located, in lieu of affording the requester an opportunity to inspect the records or receive copies by mail upon receiving payment of a reasonable copying charge, satisfies the obligations of an agency under the Open Records Act. 05-ORD-050, p. 2. Citing KRS 61.872(3), the Attorney General reminded the agency that the Act contemplates access by one of the two means previously described; 05-ORD-050 further validates our position. Based upon 95-ORD-52 and the summarized line of decisions, this office finds such a practice is not a substitute for complying with the mandatory terms of KRS 61.872(1)-(3). Accordingly, the Board violated the Open Records Act in effectively denying Mr. Wilson's request on this basis.
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 6.1882. 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.
Aaron L. Wilson116 S. Water StreetGeorgetown, KY 40324-1339
Dr. Dallas J. Blankenship, SuperintendentScott County Schools2168 Frankfort RoadGeorgetown, KY 40324
Rocky McClintockLaw Offices, PSC115 S. Hamilton StreetGeorgetown, KY 40324
Footnotes
Footnotes
1 On November 8, 2005, Mr. Napier provided Mr. Wilson with a link "to board policy we discussed."
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2 By letter dated December 7, 2005, Mr. Wilson replied to this office. As observed by Mr. Wilson, the link to the site provided contains a disclaimer indicating the online manual is not an official copy and may not contain the most recent changes made by the Board; the online manual "does in fact contain outdated information." In conclusion, Mr. Wilson denies the allegation that he is attempting to find contradictions between the governing statute and the Board's policy.
3 Although Mr. McClintock further contends the "crux of the problem [is] that Mr. Wilson does not want to accept that pursuant to KRS 160.380(4)(a) he is required to undergo a criminal background check before he can be placed" on the substitution list, neither Mr. Wilson's identity nor his purpose in requesting access are germane to this appeal; further elaboration is therefore unwarranted.
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4 Although the Board belatedly complied with this provision, a response pursuant to 40 KAR 1:030 Section 2 should be viewed as an opportunity to supplement rather than supplant a denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. Accordingly, this office considers supplemental responses that correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or, which offer additional support for the original denial. In denying future requests, the Board should be guided by these principles.
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