Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Martin County Board of Education relative to the March 20, 2008, and April 16, 2008, requests of John Hicks for "a list or record of substitute teachers that have applied and a list of teachers that have been hired to substitute teach for this 07-08 school year in the Martin County School System," violated the Open Records Act.
In his letter of appeal, dated May 29, 2008, Mr. Hicks indicated that as of that date, although he had telephone conversations with Carolyn Sweeney, who he stated was personnel director -- records custodian, he had received no written response to his requests.
After receipt of notification of the appeal, John R. Triplett, Attorney at Law, provided this office and Mr. Hicks with a response, on behalf of the Board, to the issues raised in the appeal. Mr. Triplett advised in relevant part:
In the memoranda from Ms. Sweeney, she indicates that she communicated with Mr. Hicks telephonically and told him that if he wished to review the substitute list that he could review the minutes of the various Board meetings that concern hiring and she further indicates that she received no objection from him on this part until the appeal which was received in June. Mr. Hicks can review the minutes at any time or if the Attorney General determines that the Board should spend its time reviewing those records and compiling some sort of list, the Board and the administration would comply, and make such a list available to Mr. Hicks.
Mark Andrew Blackburn, Superintendent, Martin County Board of Education, also provided this office with a response to the issues raised in the appeal. In his response, he also advised that the Board would be glad to arrange for Mr. Hicks to review the documents that he had requested to review.
In a reply letter to this office, Mr. Hicks stated, in pertinent part that, after each request was made, he had telephoned Ms. Sweeney and she had informed him that she had received his request and had forwarded it to the Superintendent. Mr. Hicks reiterated that he had received no written response to his requests.
We address first the procedural issue as to the timeliness of the Board's response. KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three business days, and indicate whether the request will be granted. If the agency denies all or any portion of the request, it must "include a statement of the specific exception authorizing the withholding of the record," and briefly explain how the exception applies to the record withheld.
In general, a public agency cannot postpone or delay this statutory deadline. The burden on the agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed 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 working days, and to afford the requester timely access to the requested records. 93-ORD-134. If, on the other hand, the records are in use, in storage, or otherwise unavailable, the agency must "immediately so notify" the requester, and designate a place, time, and date for inspection "not to exceed" three days from receipt of the request, "unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection. " KRS 61.872(5).
In his letter of appeal, dated May 29, 2008, Mr. Hicks indicated he sent his requests on March 20, 2008, and April 16, 2008, and telephone conversations with Ms. Sweeney confirmed that each had been received, but stated that he had received no written response to either of his requests, as of the date of his letter of appeal. In its response submitted after the appeal was initiated, the Board did respond to Mr. Hicks' requests by providing him with a copy of its response to the Attorney General. This did not cure the failure to timely respond to the open records request as required by KRS 61.880(1). A response to a letter of appeal, pursuant to 40 KAR 1:030, Section 2, should be viewed as an opportunity to supplement, and not supplant an agency's initial response or the requirement that it timely respond to an open records request. See 04-ORD-068. Moreover, the Board's oral responses to Mr. Hicks' requests did not satisfy the requirements requiring a written response. 03-ORD-083. The failure to provide Mr. Hicks with a written response to his requests within three business days after receipt of each constituted a violation of KRS 61.880(1).
Addressing the substantive issue, in their responses to this office, both the response of the Superintendent and the Board's attorney have advised Mr. Hicks that the requested records containing the information will be made available for his inspection. Thus, the agency has not denied access to its records and did not violate the Open Records Act in this regard. If he has not already done so, Mr. Hicks should proceed to review the requested records.
Portions of Mr. Hicks' requests were for a list of substitute teachers that have applied and a list of teachers that have been hired to substitute teach for this 07-08 school year in the Martin County School System. These are requests for information. The Kentucky Open Records Act addresses requests for records, not requests for information. In 95-ORD-131, p. 2, we observed:
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request."
This office has also long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. See, e.g., OAG 76-375; OAG 90-101; 96-ORD-251. Accordingly, if it does not maintain such lists, the Board would not be required to compile such lists under the Open Records Act. As noted above the Board has agreed to make records containing the information he seeks available for his inspection.
Because the requests asked for records indicating all applicants that applied to substitute teach during this 07-08 school year, we remind the parties that in 03-ORD-084, this office observed:
With specific reference to application materials submitted by unsuccessful applicants, this office has consistently affirmed agency denial of access on the basis of KRS 61.878(1)(a). For example, in OAG 90-113, 95-ORD-38, 96-ORD-1, 97-ORD-72, 00-ORD-90 and 02-ORD-221, the Attorney General held that the public agencies to which the requests were directed properly withheld applications and resumes of unsuccessful applicants whose identities were not known. Synthesizing the rationale underlying these decisions, in 02-ORD-221 we observed:
02-ORD-221, p. 2. Where, as here, the applicant's identity has been disclosed and the applicant has publicly confirmed that he is, or was, an applicant, 1 his privacy interest is significantly reduced if not eliminated altogether.
Against this negligible privacy interest we weigh the competing public interest in disclosure of the application materials of unsuccessful applicants. That interest has also, in general, been characterized as nominal at best. Although the public has a significant interest in the competence of the applicants public agencies hire and the agencies' adherence to proper hiring practices, as reflected in the successful applicants' application materials, the public's interest in disclosure of the application materials of unsuccessful applicants is reduced insofar as the latter application materials are "unnecessary for the public to evaluate the competence of people who were appointed" and "may be misleading because the appointments were made on the basis of both the applications and the interviews."
Core v. United State Postal Service, 730 F.2d 946, 949 (4th Cir. 1984) cited in 00-ORD-90, p. 6. . . .
03-ORD-084, p. 5-6.
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. Distributed to:
John HicksCarolyn SweeneyMark BlackburnJohn R. Triplett
Footnotes
Footnotes
1 In contrast, if an applicant's identity is the subject of mere speculation or rumor, and has not been confirmed by the applicant, we believe the applicant continues to enjoy a protected privacy interest in his or her application materials.