Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Education violated the Open Records Act in the disposition of Tim Fletcher's June 28, 2009, request for access to "[a]ny and all correspondence, documents, forms, etc., either sent to, or received from Johnson County Schools from 2004-2006 concerning the Federal Drug Awareness funded program." For the reasons that follow, we affirm the Department's disposition of Mr. Fletcher's request.
The facts giving rise to this appeal are summarized below:
June 28, 2009 - Mr. Fletcher submits a request to the DOE for "[a]ny, and all, correspondence, documents, forms, etc., either sent to, or received from Johnson County Schools from 2004-2006 concerning the Federal Drug Awareness funded program."
July 22, 2009 - Mr. Fletcher submits a request to the DOE for "the title, number, description, account, report, explanation, portrayal, narrative, or any other synonym of the above descriptions of all federally funded grants received, established, awarded to, given to, agreed upon to award to, prearranged for, known to have been awarded to, honored, granted to, gifted for, or any other synonym of the above descriptions for Johnson County Schools between January 1, 2003 and December 31, 2007 [and documentation relating thereto]."
July 22, 2009 - Mr. Fletcher initiates an appeal to the Attorney General, questioning DOE's responses to his June 28 and July 22 requests.
July 30, 2009 - DOE agrees to provide Mr. Fletcher with the requested documentation upon receipt of $ 23.00 for photocopying and postage expenses.
August 7, 2009 - DOE provides Mr. Fletcher with all records in its possession "that are generally responsive to his request for documents related to 'federally funded grants . . . between January 1, 2003 and December 31, 2007, . . . concerning Johnson County Schools . . . .'"
August 11, 2009 - Assistant Attorney General James M. Herrick notifies Mr. Fletcher that because all records responsive to his request have been released to him, his open records appeal is moot per 40 KAR 1:030, Section 6.
August 17, 2009 - Mr. Fletcher submits an open records complaint to the Attorney General concerning DOE's disposition of "two previous requests," noting that he "did not receive at least one, and probably more, grants (along with all documentation) ," and attaching "a MUNIS printout which shows information concerning one grant [he] did not receive."
August 24, 2009 - The undersigned Assistant Attorney General notifies Mr. Fletcher that because he did not provide this office with copies of DOC's responses to the "two previous requests," we could not consider his appeal per 40 KAR 1:030 Section 1.
August 30, 2009 - Mr. Fletcher forwards to the Attorney General "the information sent by the Kentucky Department of Education," reiterating that he "did not receive all the documents requested . . . such as the information concerning the 2 attached MUNIS reports."
September 9, 2009 - DOE advises the Attorney General that "all documents responsive to Mr. Fletcher's request(s) have been provided to him," and suggests that "[i]f Mr. Fletcher believes that a specific document is in possession of the DOE, the DOE is more than willing to search [its] records and provide that documentation to him . . . ."
These facts confirm that the issue now before us is identical to the issue presented to this office in Open Records Appeal Number 200900271 and resolved in our August 11, 2009, letter declaring this matter to be, for all intents and purposes, moot.
40 KAR 1:030 Section 6 provides:
If the 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.
Additionally, 40 KAR 1:030 Section 4 provides:
The Attorney General shall not reconsider a decision rendered under the Open Records Law or the Open Meetings Law. Parties dissatisfied with a decision may appeal the decision to circuit court as provided in KRS 61.880(5) and 61.848.
Although Mr. Fletcher states that he may not have received copies of documents referenced in MUNIS printout (s), he does not direct our attention to any portion of the printout supporting his position, per DOE's suggestion, or offer any explanation of the meaning or import of the printout (s). In our August 11 letter to him, this office notified Mr. Fletcher that he "still [had] the right to seek enforcement of the Open Records Act in the circuit court of the county where the public records are maintained if [he] believe[d] that there [were] unresolved open records issues." (Emphasis added.) He did not pursue either option.
Where complaints of this nature are presented, the Office of the Attorney General has frequently acknowledged that we:
cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions.
See OAG 89-81. Here, as in OAG 89-81, it is clear that DOE has provided Mr. Fletcher with public records responsive to his request. If additional records exist, and Mr. Fletcher can identify them based on his analysis of the MUNIS printouts, DOE has expressed its willingness to provide him with copies. DOE can do no more. Nor can this office when we have previously addressed the issue presented on appeal, and are foreclosed from reconsidering our position by virtue of the cited regulation. We therefore find that Mr. Fletcher's complaint contains no new allegation that DOE's actions contravened the provisions of the Open Records Act, and affirm its disposition of this matter.
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.