Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the inaction of the Magoffin County Board of Education relative to John Hicks' identical February 14, and February 22, 2012, requests for "record[s] to show that the following people (teacher/ administrators) are back to working in the Magoffin County School System[:] Darrell B. Patrick , Willie Cole and Janice Bledsoe " and "record[s] to show that these teachers/ administrators had actions taken on their certificates" violated the Kentucky Open Records Act. (Original emphasis.) Having received no response to either of his written requests, the first of which the Board apparently did not receive for some reason, 1 Mr. Hicks initiated this appeal by undated letter received in this office March 23, 2012. 2 Although this office issued a "Notification to Agency of Receipt of Open Records Appeal" to both Superintendent Joe E. Hunley and legal counsel for the Board, Donald McFarland, on March 26, 2012, advising that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal," but any response "must be received no later than Friday, March 30, 2012," this office has not received a written response of any kind nor was either Notification returned as being undeliverable. After the deadline for a response had passed, this office attempted to reach legal counsel for the Board to confirm receipt of the Notification and to inquire as to whether he planned to respond on its behalf. Counsel was unavailable but did not return a message left with his receptionist. As of this date, the Attorney General has received neither a response nor a request for an extension of time in which to respond on behalf of the Board. Such inaction unquestionably constitutes a violation of KRS 61.880(1).
As a public agency, the Board must comply with the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests made under the Act. In relevant part, KRS 61.880(1) 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.) In construing the mandatory language of this provision, the Kentucky Court of Appeals observed that "[t]he language of the statute directing agency action is exact. It 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, 858 (Ky. App. 1996) (emphasis added). As evidenced by the italicized language, the public agency must issue a written response within three business days of receiving a request. A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance." Id. ; 01-ORD-183, pp. 2-3. It logically follows that failing to respond, as the Board did here, constitutes a violation of the Act.
The Board had at least two opportunities to discharge its duty under KRS 61.880(1); first, upon receipt of Mr. Hicks' February 22 request; and, second, upon receiving the Notification of his appeal from this office. It is undisputed that the Board has not issued a written response to Mr. Hicks' request(s), and this constitutes a clear violation of KRS 61.880(1). Public agencies such as the Board are not permitted to elect a course of inaction. See 05-ORD-190; 11-ORD-038; 11-ORD-112. As the Attorney General has consistently recognized, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 04-ORD-084, p. 3, citing 93-ORD-125, p. 5; 09-ORD-186.
Because the Board did not respond to Mr. Hicks' request(s), the Board has necessarily failed to advance a legal argument in support of its apparent denial of that request. Pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action shall rest with the agency. . . ." 3 Accordingly, the Board must provide Mr. Hicks with copies of any existing records in its custody which are responsive to his request unless the Board can and does belatedly satisfy its burden of proof by articulating, in writing, a basis for denying access in terms of one or more of the exceptions codified at KRS 61.878(1)(a) through (n). 4 Pursuant to KRS 61.872(3)(b), the Board's "official custodian shall mail the copies upon receipt of all fees and the cost of mailing." 5 If the Board "does not have custody or control" of any records identified in Mr. Hicks request(s), the Board "shall notify [Mr. Hicks] and shall furnish the name and location of the official custodian of the agency's public records." KRS 61.872(4). Until the Board performs these functions, it stands in violation of the Open Records Act. See 09-ORD-186; 10-ORD-093.
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 party in that action or in any subsequent proceeding.
Distributed to:
John HicksJoseph E. HunleyDonald McFarland
Footnotes
Footnotes
1 Mr. Hicks advised in his letter of appeal that he contacted the records custodian by telephone and was informed that his first request had not been received. He then sent a second request, receipt of which he confirmed via telephone. Although this office is unable to conclusively resolve factual disputes concerning the actual delivery and receipt of requests, and thus makes no finding with regard to Mr. Hicks' first request, despite having multiple opportunities, the Board has not refuted his assertion regarding the second request.
2 This office is fully cognizant of the severe tornado which affected much of Magoffin County on March 2, 2012, including the schools; however, as Mr. Hicks correctly noted in his letter of appeal, that devastating tragedy did not occur until a week or so after his February 22 request was received. Although Mr. Hicks made his February 22 request upon learning that his February 14 request was not received, as noted he received verbal confirmation that his subsequent request was, in fact, received. The Board was therefore obligated to issue a written response within three business days.
3 A public agency such as the Board must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof, withheld per KRS 61.880(1) in order to satisfy its burden of proof. 04-ORD-106, p. 6; 01-ORD-232; 04-ORD-080.
4 Because Mr. Hicks did not precisely describe the records being sought per KRS 61.872(3)(b), the Board may require him to conduct on-site inspection of potentially responsive records per KRS 61.872(3)(a), prior to providing him with copies upon receipt of payment, if he resides in the same county where the records are located.
5 If no records exist which areresponsive to Mr. Hicks' request(s), the Board must promptly indicate as much to Mr. Hicks in writing (and identify the steps taken to locate potentially responsive documents per 95-ORD-96). On this issue, the Attorney General has consistently held:
[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not so state is deficient. [Citations omitted.]
02-ORD-144, p. 3; 03-ORD-207; 07-ORD-188; 07-ORD-190. Accordingly, the Board must ascertain whether any existing records are responsive to Mr. Hicks' request(s), promptly advise him in writing of its findings, and briefly explain the nonexistence of such records if appropriate--nothing more, nothing less.