Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
By letter directed to the Education Professional Standards Board ("EPSB"), and dated April 3, 2014, John Hicks requested nine items of information and records pertaining to issuance of emergency and probationary teaching certificates. Having allegedly received no written response, Mr. Hicks initiated this appeal by letter dated May 21, 2014, focusing exclusively on the agency's purported failure to respond in writing and otherwise making allegations that are beyond our scope of review under KRS 61.880(2)(a).
Upon receiving notification of Mr. Hicks' appeal, Director of Legal Services Alicia A. Sneed and Whitney A. Crowe, attorney, jointly responded on behalf of EPSB. The agency included a copy of the written response directed to Mr. Hicks by Records Custodian Marcie Lowe on April 29, 2014. EPSB advised that Mr. Hicks' request was dated April 3, 2014, but was not actually received until nearly three weeks later on April 21, 2014. Following receipt of Mr. Hicks' request letter, they advised, Ms. Lowe notified him by telephone that a response was underway and subsequently notified him by telephone that a written response would soon be mailed. EPSB enclosed a copy Ms. Lowe's June 3, 2014, affidavit confirming this procedural history. In particular, Ms. Lowe attested that she received Mr. Hicks' request, dated April 3, 2014, on April 21, 2014, and "the mailing envelope did not contain a dated postage stamp or otherwise indicate when the letter had been processed by the United States Postal Service." Ms. Lowe further attested that Mr. Hicks contacted her by telephone regarding the status of his request when she was in the process of completing the agency's written response. Ms. Lowe notified him that she received the request on April 21, 2014, and that additional time was needed to comply. After consulting with Ms. Sneed, she contacted Mr. Hicks by telephone and left a voicemail message advising that her written response was forthcoming. Ms. Lowe advised that she mailed the agency's written response, including all existing responsive documents, at no cost to Mr. Hicks, on April 30, 2014. Until Ms. Lowe received the notification of Mr. Hicks' appeal from this office, she "had no knowledge of Mr. Hicks' claim that he failed to receive" the April 29, 2014, response of EPSB. The agency included another copy of its April 29, 2014, letter, including attachments, with its June 3, 2014, appeal response.
Public agencies must comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access to the records, generally speaking. See 12-ORD-180. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . 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." The only exception to KRS 61.880(1) is codified at KRS 61.872(5), which EPSB did not invoke; however, 61.880(1) presupposes actual receipt of the request. EPSB maintains that Mr. Hicks' request was not received until April 21, 2014, notwithstanding the April 3, 2014, date appearing on the first page.
The Attorney General has consistently acknowledged the inability to conclusively resolve factual disputes, and specifically ones concerning actual delivery and receipt of a request. See OAG 89-81; 03-ORD-172; 04-ORD-223; 08-ORD-066; 12-ORD-122. When presented with such factual disputes, the Attorney General has recognized that "this office is not equipped to resolve factual dispute [s] [when presented with conflicting factual narratives] ." 96-ORD-70, p. 3. Rather, KRS 61.880(2)(a) provides that upon receiving a new Open Records Appeal, "the Attorney General shall review the party's request, and the public agency's response, and issue 'a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.' Given this specific statutory mandate, we decline to render a decision on [the factual dispute] ." 96-ORD-70, p. 3; 09-ORD-120; 10-ORD-122. As in the cited decisions, the record on appeal does not contain sufficient evidence concerning the actual delivery and receipt of Mr. Hicks' request for this office to resolve the related factual issue presented -- whether EPSB received his request prior to April 21, 2014. This office has no reason to question Mr. Hicks' veracity; however, the record is equally lacking in terms of any basis to question Ms. Lowe's veracity or conclusively refute her affidavit. Given this conflicting evidence regarding the date when EPSB actually received Mr. Hicks' request, a conclusive resolution of the related issue cannot be reached and this office makes no finding.
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 HicksRobert BrownMarcie LoweAlicia A. Sneed