Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Christian County Board of Education violated the Open Records Act in the disposition of Kentucky New Era reporter Margarita Cambest's January 31, 2014, request for "copies of all correspondence between the school district and the U.S. Department of Education's Office for Civil Rights." For the reasons stated below, we find that the school district should have provided a more detailed explanation for the delay in providing records, although the delay was not unreasonable under the circumstances.
The third day after Ms. Cambest's request was delivered, excluding the weekend, was Wednesday, February 5, 2014. On that date, the school board's attorney, Jack Lackey, responded by e-mail:
I am writing in regard to your open records request for correspondence with OCR. I was forwarded that request on Monday. With schools closed, it has been difficult to get together with everyone that may have exchanged correspondence with OCR. I have received some items, but have not had an opportunity to review and am not certain I have everything yet. I am supposed to get some items today. I will try to get these to you by Friday of this week. If you have any questions, feel free to give me a call.
The following day, New Era editor Eli Pace initiated an appeal to this office, stating:
Although inclement weather has prompted school closings this week, I do not believe this affected the district's central office from conducting business. Specifically, I question whether "snow days" should affect the district's ability to respond to an open records request within three business days as the law requires.
Mr. Lackey responded to this appeal on February 17, 2014, adding the following pertinent information:
On the evening of February 2, 2014 and during the morning hours of February 3, 2014, the Christian County area was hit with a winter storm. As a result, CCBE's schools were closed on February 3, 4, and 5, 2014. During the morning of February 5, 2014, the Christian County area was hit by another winter storm. In fact, my office closed shortly after lunch because of quickly deteriorating and dangerous road conditions. As a result of [this] second round of wintry weather, CCBE's schools were closed for the remainder of the week through Friday, February 7, 2014.
During the week of February 3, 2014, the Central Office of CCBE operated with a skeleton crew of administrators and with limited hours. Several of the top administrators, including the Director of Pupil Personnel, the Chief Instructional Officer, and the Director of Personnel, reside outside of Christian County and commute to work daily. These top administrators were only in the office very limited hours during the week of February 3, 2014. The Chief Administrative Officer, Chief Instructional Officer, and Director of Strategic Planning were out sick for most of the week. Barry Combs (the administrator having responsibility over student date who was very familiar with the district's correspondence with OCR) was out sick for much of the week as well. Essentially, the only top Central Office administrators who were able to work that full week were the Superintendent and the Chief Operating Officer, and they were extremely busy dealing with weather-related issues and covering for those not present. Plus, even their hours in the office were limited by the weather conditions. This was all on top of a weather situation that generally made getting things done more difficult and more time consuming than would otherwise have been the case.
By February 5, 2014, those at the Central Office let me know that they had gathered much of the information that would be responsive to KNE's request. On the afternoon of February 5, 2014, I sent an employee to the Central Office to get the information that had been gathered (which was all subsequently provided). When the employee returned with the documents to my office, our office closed because of the dangerous and deteriorating condition of the roads. When I saw the volume of records that had been gathered, I realized that I would not be able to go through the records before I would need to leave the office to go home. So, at 3:14 p.m. on Wednesday, February 5, 2014, I sent KNE an email explaining that the weather conditions and schools being closed had made the process of gathering the information more difficult than usual. ? I had explained that I had received records but had not had the opportunity to review and was not sure that I had everything. I explained that I would try to get the requested copies to KNE by Friday, February 7, 2014, which would have been the fifth business day following the request. I never received any response to my email.
By February 7, 2014, I was able to finish my review of the items that had been sent to me by the Central Office. There was one disc that I did not have, which had been referenced in those items. I called for Barry Combs to see what was on the disc, but I was not able to connect with him until later. So, I scanned all of the items (in two volumes) that had been sent to me and emailed them to KNE at 2:10 p.m. on Friday, February 7, 2014, which was five business days after CCBE had received the request. ? I explained that I might not have everything as I had not reviewed the disc that had been referenced in some of the records being provided, but I did notify KNE that the disc might consist of confidential student records. I also offered to sit down with KNE and go over the OCR Compliance Review process so as to help KNE understand the process as almost all of the interaction between OCR and CCBE had been conducted by way of telephone calls, personal interviews, and the allowance of direct access to student discipline data.
On Monday, February 10, 2014, I spoke with Barry Combs about the disc of information. At that time, Mr. Combs explained that the disc consisted solely of confidential student discipline records. At that point, I faxed a letter to KNE explaining the confidential and exempt nature of the information on the disc. 1 I also verified that the response to the records request was now complete.
Therefore, the substantive response was completed six business days after the agency received the request.
KRS 61.880(1) requires that a public agency notify the requesting party of its disposition of an open records request within three days, exclusive of weekends and legal holidays. An exception to this rule exists under KRS 61.872(5), which provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, 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.
Mr. Lackey correctly argues that under KRS 61.872(3)(b) a requester who resides and has a principal place of business in the same county with the public agency may be required to inspect records in person rather than being mailed copies. Nonetheless, if an agency so situated decides to provide copies instead of merely granting inspection, it is still subject to the time constraints imposed by KRS 61.880(1).
We have held in the past that "a determination of what is a 'reasonable time' for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records." 93-ORD-134. In light of the difficulties presented by the school board's situation in this case, we do not find an additional three business days to have been unreasonable.
Under KRS 61.872(5), some of these records could properly be deemed "not otherwise available" to the extent that the persons who had knowledge of the records were unavailable. Nevertheless, this subsection requires "a detailed explanation of the cause ? for further delay." (Emphasis added.) Had Mr. Lackey included in the February 5 e-mail a greater measure of information regarding the staffing situation at the central office, the limited business hours, and the unavailability of key personnel, we would find the school board in full compliance with KRS 61.872(5). Given the limited explanation contained in the e-mail, however, we find that a procedural violation occurred.
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:
Mr. Eli PaceMary Ann Gemmill, SuperintendentJack N. Lackey, Jr., Esq.
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