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 Graves County Board of Education subverted the intent of the Open Records Act, short of denial of inspection, in the disposition of Kelly Whitaker's March, 2007, requests for records relating to the Board's decision to consolidate two elementary schools. For the reasons that follow, we find that the Board's disposition of Ms. Whitaker's requests constituted a subversion of the intent of the Act within the meaning of KRS 61.880(4). 1
In the interest of brevity, we summarize Ms. Whitaker's allegations and the Board's responses thereto:
3/5 - 3/9
Ms. Whitaker leaves a voice mail for Graves County Board of Education Financial Director Rodney Pearce in which she requests review of certain financial documents.
3/12
Ms. Whitaker leaves another voice mail for Mr. Pearce in which she requests documents. She follows up with a visit to the Board's offices, but is advised that Mr. Pearce is unavailable.
On appeal, the Board responds that these communications, along with the communications of other opponents of school consolidation, are indicative of an unreasonable burden and an intent to disrupt its essential functions. 2
3/13 - 3/14
Ms. Whitaker emails an open records request to Mr. Pearce on March 13 followed by a more detailed request on March 14.
On appeal, the Board responds that the Open Records Act requires that requests be submitted by fax, U.S. Mail, or hand-delivery. Nevertheless, the record on appeal does not reflect that the Board initially objected to her emailed requests, but instead reflects that it responded by email on March 20, 29, and 30, and on April 5.
3/15
At a regular meeting of the Board, Ms. Whitaker discusses her requests with Mr. Pearce. He indicates that he intends to discuss her requests with Superintendent Brady Link in a closed session after the regular meeting.
On appeal, the Board responds that Mr. Pearce did, in fact, discuss his inaction relative to Ms. Whitaker's voice mails and emails with Ms. Whitaker, advising her that in the executive session to be conducted that evening he would "request that the Board direct all information requests through the Board office . . . to ensure that current information is being disseminated." 3
3/20
Mr. Pearce responds to Ms. Whitaker's March 13 request by email, attributing the delay in his response to the Superintendent's absence and stating that "he will be happy to supply any information as required under the rules and guidelines set forth in the open records act." He notes that she can obtain an open records application at the Board's office, but does not object to her use of email.
On appeal, the Board responds that Ms. Whitaker "subsequently filled out an application and was given access to not only the records she requested, but anything that was contained in the files with her target information." Continuing, the Board observes:
The records, if they exist, need to be made available for inspection. There is no requirement to collate, compile, or pre-copy information for the requester (which may be designed to keep a public agency from influencing the direction of a citizen's search in order to hide information).
3/29
Mr. Pearce emails a response to Ms. Whitaker's March 28 request, indicating that responsive records are being gathered but denying the existence of two of the records identified in her request, namely, the minutes of the Board meeting at which the Board decided to consolidate two elementary schools 4 and records reflecting the projected cost of the purchase/ renovation of Fancy Farm Elementary.
4/4
Ms. Whitaker exercises her right of onsite inspection and is directed to a Board room containing 47 boxes that are labeled by school. She objects on the basis that the Board is obligated to produce only responsive records, and the Board responds that agencies are "not required to find them for [her]." Having reviewed the boxes of records, she is unable to locate some requested records, including minutes of Board meetings. Upon inquiry, she is furnished with the minutes, but obtains copies of records only after emailing the Board on April 5. She indicates that she never received the minutes of the February Board meeting.
On appeal, the Board responds that the volume of records produced correlated to the breadth of Ms. Whitaker's request, and that each of the 47 boxes contained documentation of reimbursements to administrative staff and board personnel from 2000 to the present as well as documentation from several construction projects, including accounts payable records for the requested time period. 5 Nevertheless, the Board notes, the boxes were "clearly marked" and assistance in locating responsive records offered. The Board attaches copies of records produced in response to Ms. Whitaker's request and the request of another school consolidation opponent. Among these attachments is a document entitled "Record Inspection Procedures," item 6 of which provides for a fifteen cents per page copying charge. 6 It is the Board's position that it "has made every effort to comply with the requirements and the spirit of the open records laws." Respectfully, we disagree. Our analysis follows:
Obligatory search versus nonobligatory research
We concur with Ms. Whitaker in her view that the Graves County Board of Education subverted the intent of the Open Records Act, short of denial of inspection, by commingling nonresponsive records with responsive records so as to create unnecessary impediments to effective review and by asserting that it had no duty to produce only responsive records. In at least three open records decisions previously issued by this office, the Attorney General has determined that public agencies "improperly equated an obligatory search for [responsive records] with a request for nonobligatory research to be performed." See 01-ORD-51, p. 5; 02-ORD-150; 06-ORD-117. The facts giving rise to 02-ORD-150, and the holding in that decision, are particularly apropos. There, the requester submitted a series of requests for records relating to a formal complaint to the Department of Education by the Fort Thomas Independent School District. The District responded by producing a large volume of records, but failed to "identi[fy], segregat[e], and disclos[e] the specific records identified in [the] request that [was] the subject of [the] appeal." Id. at 1. At page 7 of the decision, we held that although:
[w]e continue to ascribe to the view that public agency employees are not required to provide instruction in understanding the meaning and import of information which appears upon records produced, 7 [we] believe . . . the commingling of requests and the volume of records produced precluded the requester from conducting her own meaningful review.
For this reason, we concluded, "the District's efforts fell short of the statutory requirements codified at KRS 61.880(1)."
While the facts giving rise to this appeal do not conclusively establish an intent on the part of the Board to impede Ms. Whitaker's inspection of the records identified in her request, we find no support in existing legal authority for the proposition that "[t]here is no requirement to collate, compile, or pre-copy 8 information for the requester (which may be designed to keep a public agency from influencing the direction of a citizen's search in order to hide information)." Nor do we believe that the Board acted properly in providing her with "anything that was contained in the files with her target information." The language of the statute governing agency action is unambiguous. It requires the agency to produce records responsive to an open records request formulated with sufficient specificity to enable the agency's custodian of records to locate and retrieve those records. Accord, Edmondson v. Alig, Ky. App., 926 S.W.2d 856 (1996); Department of Corrections v. Chestnut, Ky. App., 2004-CA-1497-MR (2005) 9 (holding that a records description is adequate if it enables the agency's custodian to "identify what documents the applicant[] wish[es] to see . . .").
If it has not already done so, it is incumbent on the Graves County Board of Education to "identify, segregate, and disclose" records responsive to Ms. Whitaker's requests, excluding nonresponsive records, and, where possible, to produce existing records that aggregate the information sought, such as the referenced "2005-2006 Purchases by Vendor" that appears on its website and the Fancy Farm and Lowes Elementary Schools assessments that were furnished to another requester, rather than the voluminous records upon which the aggregate records are based. If no responsive records exist, it is incumbent on the Board to affirmatively so state. OAG 86-38, OAG 90-26, OAG 91-101; 96-ORD-164; 00-ORD-141; 06-ORD-117. Until it has done so, its obligations under the Open Records Act will not be fully discharge.
Procedural noncompliance
Turning to the procedural issues in this appeal, we find that the Board violated KRS 61.880(1) in failing to issue a timely response to Ms. Whitaker's requests. In defense of its actions, the Board asserts that delays in responding were occasioned by the absence of the superintendent and the need to discuss the requests during a closed session conducted in the course of its March regular meeting. Moreover, the Board asserts, verbal and emailed open records requests need not be honored inasmuch as the Act contemplates delivery of requests in person, by fax, or by U.S. Mail. While this office has adopted the latter position in a series of open records decisions, we find that the Board's actions in this regard were indicative of a willingness to conduct its open records transactions by email. Further, we find that none of the rationales advanced in support of its delays in responding to Ms. Whitaker's requests tolled its statutory response time.
On the latter issue, this office has consistently observed:
KRS 61.880 sets forth the duties and responsibilities of a public agency in responding to a request received under the Open Records Act. Subsection (1) of that provision requires that the agency, upon receipt of a request, respond in writing to the requester within three business days of receipt of the request, and produce the requested records for inspection or copying or deny access on the basis of one or more of the statutory exceptions. The only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three business days and to provide the requester with timely access to the requested records."
94-ORD-156, p. 10. Although "the burden on the public agency to respond in three working days is, not infrequently, an onerous one, . . . [n]othing in the statute permits the agency to indefinitely postpone or delay this statutory deadline." Id., p. 9. The Graves County Board of Education erred in postponing its statutory deadline based on its desire to consult with the superintendent and the full Board before responding. These do not, in our view, represent a legitimate basis for failing to respond or otherwise postponing access. We urge the Board to bear these observations in mind in responding to future open records requests.
Nor are we persuaded that the Board was relieved of its obligations under the Act because Ms. Whitaker originally submitted her requests by voicemail and email. We acknowledge that we have recognized, on a number of occasions, that "unless the parties (meaning the requester and the public agency) enter into an express agreement, or consent by a clear course of conduct, to transact their open records business by email, " an agency is not obligated to honor an emailed request. See, e.g., 98-ORD-167; 98-ORD-193; 03-ORD-162; 04-ORD-090 (footnote 2), 06-ORD-018; 06-ORD-086; 07-ORD-033. These decisions were premised on the statutory language found at KRS 61.872(2), providing that open records requests "shall be hand delivered, mailed, or sent via facsimile" and requiring an applicant's signature. These decisions are, however, distinguishable insofar as the Board did, in fact, consent by a clear course of conduct to transact its open records business with Ms. Whitaker by email, responding to her requests by email on four separate occasions: March 20, 29, and 30, and April 5. We therefore find this belated defense for its delay in responding to her requests and affording her access to records, based on the mode of transmission of those requests, disingenuous. Although the Board may adopt this policy in futuro, it cannot be heard to assert this defense in the present action. In sum, we find that the Graves County Board of Education's disposition of Ms. Whitaker's requests was both procedurally violative, and subversive of the intent, 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.
Footnotes
Footnotes
1 KRS 61.880(4) thus provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
2 The Board does not pursue this argument and provides minimal evidence of undue burden or an intent to disrupt its essential functions. In the absence of clear and convincing evidence, we reject the Board's KRS 61.872(6) claim.
3 Although Ms. Whitaker does not raise the issue in her open records appeal, or in a properly presented open meetings appeal, we question whether a discussion of the procedures for submission of open records request is an appropriate topic for a closed session discussion. See Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997) (hold that in enacting KRS 61.810(1)(c) "the drafters of the legislation clearly envisioned that this exception would apply to matters commonly inherent to litigation, such as preparation, strategy, or tactics" but not "'any time the public agency has its attorney present' or where the possibility of litigation is still remote". Clearly, "matters discussed under KRS 61.810(1)(c) must not be expanded to include general discussions of everything tangential to the topic." Id.
Further we note that KRS 61.876 imposes a duty on every public agency to adopt, and display in a prominent location accessible to the public, "rules and regulations in conformity with the provision of KRS 61.870 to 61.884" governing access to the agency's records. In light of the Board's apparent need to discuss open records procedures, we question whether it has complied with its statutory duty under KRS 61.876. If it had done so, we suspect that much of the dispute giving rise to the appeal before us could have been avoided.
4 This issue tangentially relates to the issue before this office in 07-OMD-100. There, the Attorney General determined that the Graves County Board of Education violated the Open Meetings Act when a quorum of its members discussed the school consolidation question in a vehicle returning from a meeting in Frankfort without complying with the requirements of the Open Meetings Act.
5 In her reply to the Board's supplemental response, Ms. Whitaker reasserts her objection to the Board's production of "an overwhelming amount of information to sort through to obtain the requested information . . . ." She notes the existence of single documents that contain that information sought such as the "2005-2006 Purchases by Vendor" document appearing on the Board's website that identifies amounts reimbursed to staff and board members, and assessments for Fancy Farm and Lowes Elementary Schools that were furnished to another requester.
6 We remind the Graves County Board of Education that both the courts and this office have consistently recognized that copying fees in excess of ten cents per page are unreasonable, and therefore violative of the Open Records Act, unless the agency can substantiate that its actual costs, including medium and mechanical processing costs but excluding the cost of staff required, exceed ten cents per page. See, KRS 61.874(3); Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985); 05-ORD-194 (and authorities cited therein).
7 Citing OAG 89-91.
8 The record on appeal is devoid of proof that Ms. Whitaker asked the Board to "pre-copy" the records identified in her request. Nevertheless, this statement of law is not entirely true insofar as a requester who resides or works outside of the county where the records are maintained, and who precisely describes the records he wishes to access by receipt of copies, may obtain copies without conducting an onsite inspection of the records. See, KRS 61.872(3)(b) and KRS 61.874(1).
9 Although Department of Corrections v. Chestnut is an unpublished opinion that, in accordance with CR 76.28(4)(c), cannot be cited or used as authority in any other case in any court of the state, it is indicative of the view the courts might adopt in a later published opinion addressing the degree of specificity required in an open records request. A petition for discretionary review was granted in this case on May 10, 2006 (2006-SC-000086).