Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Graves County Board of Education (Board) subverted the intent of the Open Records Act, short of denial of inspection, in the disposition of Kelly Whitaker's April 7, 2007, request for copies of "Mr. Link's Board Credit Card Statements for 2006 & 2007." For the reasons that follow, we find that the Board, in its response to the issues raised in the appeal, acknowledged that its initial response subverted the intent of the Open Records Act, short of denial of inspection, as held by this office in 07-ORD-105, rendered May 10, 2007, but advised that it had been following the direction of that decision in responding to open records requests, including a subsequent request for the same credit card statements by another requester.
In her letter of appeal, Ms. Whitaker stated that when she went to inspect the records on April 25, 2007, Rodney Pearce, Board Director of Finances, led her to the board room where there were 21 boxes stacked against the wall. She explained:
He presented the boxes as the documents I requested. The boxes were stuffed with stacks of papers, stapled, clipped or banded together. Some of the boxes were labeled on the outside indicating a date range of the contents. As evidenced by the pictures, I was able to find some of the credit card statements, but not all of them. For instance, the pictures show the Jan 2007 statement. The statement shows the previous month's balance of over $ 14,000 but I was unable to find the December 2006 statement in the boxes.
Ms. Whitaker asked this office to determine whether this action of the Board at her April 25, 2007, inspection subverted the intent of the Open Records Act.
After receipt of notification of the appeal, David L. Hargrove, counsel for the Board, provided this office with a response to the issues raised in the appeal. In his response, Mr. Hargrove advised that when Mr. Pearce had made the boxes available for Ms. Whitaker's inspection, he believed that he was complying with her request and was acting in good faith in trying to get the information to her. Mr. Hargrove further advised the boxes were labeled and arranged in chronological and/or alphabetical order.
However, at the time of Ms. Whitaker's April 25, 2007, inspection, she had filed an Open Records Appeal from a similar inspection in which the Board had provided 47 boxes for inspection containing not only the records she was seeking, but many other nonresponsive records. On May 10, 2007, this office issued its opinion of that appeal, 07-ORD-105, directing the Board to identify, segregate and disclose records responsive to her request and held that commingling nonresponsive records with responsive records create unnecessary impediments to effective review and asserting that the agency had no duty to produce only responsive records subverted the intent of the Open Records Act.
In its response to the letter of appeal, the Board acknowledged that its April 25, 2007, response to Ms. Whitaker's request subverted the intent of the Open Records Act, short of denial of inspection, in light of this office's May 10, 2007, holding in 05-ORD-105, but advised that the Board has made every effort to comply with the Attorney General's direction in that decision in providing records to Ms. Whitaker. As an example, Mr. Hargrove indicated that in response to a May 24, 2007, request for the same credit card statements, those records were provided by the Board in accordance with the direction of 07-ORD-105. Under these circumstances, the Board's subsequent corrective action as directed by 07-ORD-105 mitigated the violation of the 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.