Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Martin County Public School District violated the Open Records Act in denying Mountain Citizen editor Gary Ball's February 10, 2012, request for "copies of all emails, letters, memos, and other written correspondence from the superintendent to all Martin County School board members from the period of January 2011 to the present." The District failed to overcome the statutory presumption 1 that the requested records are open records by satisfying its statutorily assigned burden of proof. Its denial of Mr. Ball's request therefore constituted both a procedural and substantive violation of the Open Records Act.
Having received no response to his request, Mr. Ball initiated this appeal on February 16, 2012. On February 17, 2012, Superintendent Mark Blackburn responded to Mr. Ball's request on behalf of the district advising Mr. Ball that he "[could] not prepare a response as information contained in various written correspondence to board members from the Superintendent may be protected by the federal privacy act and may contain information of a personal non-discoverable nature concerning employees or students." In later correspondence prompted by this office's notification of receipt of Mr. Ball's appeal, the district advised that its February 17 "response to Mr. Ball has been received by Mr. Ball and he did not otherwise notify your office that the response had been received prior to your posting of Notification of Receipt of Open Records Appeal." The district did not elaborate on the statutory basis for denying his request. The district's responses, both original and supplemental, were procedurally and substantively deficient.
KRS 61.880(1) establishes procedural guidelines for agency response to an open records request. That statute 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.) The district violated KRS 61.880(1) by failing to include a statement of the specific exception authorizing the withholding of the records identified in Mr. Ball's request and an explanation of how the exception applies to the records withheld. The district's suggestion that the records "may be protected by the federal privacy act and may contain information of a personal non-discoverable nature concerning employees or students" did not satisfy the express requirements of the Open Records Act and therefore constituted a procedural violation of the Act.
KRS 61.880(2)(c) 2 assigns the burden of proof in sustaining denial of an open records request to the public agency, in this case the Martin County Public School District. When presented with an open records request a public agency, like the district, must "make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." 95-ORD-96, p. 7, citing
Cerveny v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D. Col. 1978); see also 96-ORD-236; 99-ORD-140; 02-ORD-120; 04-ORD-242; 07-ORD-045; 09-ORD-195; 11-OD-127. Upon retrieval and review of those records, the agency must determine whether to comply with the request. KRS 61.880(1). If the agency denies the request, it must generate a denial that contains a statement of the specific exception authorizing the withholding of the requested records and a brief explanation of how the exception applies to the records withheld. KRS 61.880(1). Kentucky's courts have stated that the Act "requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, 926 S.W.2d 856, 859 (Ky. App. 1996). The record before us indicates that the district did not conduct a search for records responsive to Mr. Ball's request. Its response is framed in conditional language: the records "may contain," rather than the records "do contain," exempt information. Nor did the district generate a denial that cited a statutory exception authorizing disclosure and explained how the exception applied to the records withheld. Clearly, the district did not "provide particular and detailed information in response to [his] request for documents" Edmondson , above, or sustain its denial by proof.
The district suggests that records responsive to Mr. Ball's request "may be protected by the federal privacy act and may contain information of a personal non-discoverable nature concerning employees or students." It is unclear whether the district is referring to the Privacy Act of 1974, 5 U.S.C. § 552a, which governs records maintained by federal agencies that contain information about individuals, or the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, which governs access to student education records. Assuming it is the latter, 3 and that a review of the records confirms the existence of protected student information, 4 the district is statutorily obligated to separate the protected information and make the remaining information in those records, along with all other responsive records available to Mr. Ball. 5 KRS 61.878(4). 6 If the district's review does not confirm the existence of any protected student information, the district must make all responsive records available to Mr. Ball without redaction. Because the district failed to advance any legally recognized basis for withholding records responsive to Mr. Ball's request, we find that its denial of his request violated 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.
Distributed to:
Gary BallMark BlackburnJohn R. Triplett
Footnotes
Footnotes
1 This presumption is codified at KRS 61.872(1) which states that "[a]ll public records shall be open for inspection" and the statement of legislative policy found at KRS 61.871 which declares that "free and open examination of public records is in the public interest . . . ."
2 KRS 61.880(2)(c) thus provides, "The burden of proof in sustaining the action shall rest with the agency . . . ." KRS 61.882(3) echoes this language, assigning the burden of proof to the public agency in an original action or an appeal of the Attorney General's decision in circuit court.
3 We assume it is the latter because 5 U.S.C. § 552a is inapplicable to state records.
4 FERPA does not extend protection to records relating to district employees.
5 The district is generally foreclosed by FERPA from disclosing student education records without parental consent. Disclosure to "other school officials," arguably the board members, is only permissible if the members "have been determined by such agency or institution to have legitimate educational interests." 20 U.S.C. § 1232g(b)(1)(A).
6 KRS 61.878(4) thus provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.