Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Jefferson County Board of Education ("JCBE") violated the Open Records Act or subverted the intent of the Act, short of a denial of inspection, within the meaning of KRS 61.880(4), in connection with two requests made by Philip Setters for various records mostly relating to Fern Creek High School. For the reasons that follow, we find that some of JCBE's actions violated or subverted the intent of the Act.
This appeal was received in our office on October 22, 2015. In his first request, dated October 5, 2015, Mr. Setters, in conjunction with Kimberly T. Kelly, requested 16 categories of records, which we summarize as follows:
1. Documents relating to Mr. Setters, Ms. Kelly, or Ms. Kelly's children, including records of complaints by or against them.
2. Records related to parents' meetings and fees concerning extracurricular activities at Fern Creek High School since July 1, 2013.
3. Records related to fundraising efforts for extracurricular activities at Fern Creek High School since July 1, 2013.
4. "All resolutions by the Board of Education of Jefferson County, Kentucky approving student fees of any type at Fern Creek High school or Fern Creek Traditional High School since July 1, 2013."
5. JCBE policies on solicitation of funds.
6. "All documents pertaining to a hazing incident involving the Fern Creek High School football team in the fall term of 2014."
7. Records related to a complaint against Josh Abell concerning Ms. Kelly's son.
8. Records related to a complaint against DeeDee Olmstead concerning Ms. Kelly's daughter.
9. Records relating to a volleyball fundraising effort at Fern Creek High School.
10. Records relating to complaints made by Mr. Setters and Ms. Kelly since August 1, 2014.
11. Records relating to any complaints concerning Josh Abell.
12. Records relating to any complaints concerning Troy Rogers.
13. Records relating to any complaints concerning Nathan Meyers.
14. "All 'Form F-SA-6's or equivalent substitutes submitted in conjunction with Fern Creek High School's football, volleyball, and cheerleading programs, since July 1, 2013."
15. "All 'Form F-SA-17's or equivalent substitutes submitted in conjunction with Fern Creek High School's football, volleyball, and cheerleading programs, since July 1, 2013."
16. "Itemized financial reports, since July 1, 2013, of all funds received in conjunction with Fern Creek High School's football, volleyball, and cheerleading programs in the school activity funds. . . ."
In the second request at issue in this appeal, dated October 12, 2015, Mr. Setters asked:
[P]lease make available for inspection a copy of the posting mandated by KRS 61.876(2) that was on display in a prominent location accessible to the public at the VanHoose [ sic ] Education Building on October 5, 2015 and at 3:00 PM on October 9, 2015.
(Emphasis omitted.)
In a letter dated January 7, 2016, relating primarily to another appeal filed by Mr. Setters, but included in the record of this appeal, attorney C. Tyson Gorman, representing JCBE, advises that "Mr. Setters has received and/or been able to inspect all non-exempt records 1 responsive to his numerous Open Records Requests filed between October 5, 2015 to [ sic ] December 28, 2015." To that extent, we consider this appeal moot as to the records provided. 04-ORD-046; 03-ORD-087; OAG 91-140.
Certain aspects of a November 16, 2015, letter from Interim Director of Communications Bonnie Hackbarth to Mr. Setters, however, remain problematic. First, in response to item 4 of the first request, Ms. Hackbarth states that a "[w]ebsite location [was] provided" in fulfillment of the request. The Attorney General has previously noted that "the Open Records Act generally contemplates records access by means of onsite inspection or receipt of copies through the mail." 05-ORD-050, n.1. Inspection on a website "is not [a method] that the Open Records Act specifically contemplates. " 09-ORD-026. Therefore, a public agency that offers Internet inspection of records as the only option "cannot be said to have discharged its statutory duty under the Act." 09-ORD-077. JCBE was obliged to provide Mr. Setters with an actual copy or onsite inspection of the requested records. 2
Secondly, in regard to items 8, 9, 10, 14, 15, and 16 of the first request, Ms. Hackbarth's November 16 letter indicated that the records were "[a]vailable for your review by appointment. " While Mr. Gorman has since represented to this office that Mr. Setters is no longer being required to make appointments to inspect records, we find that to the extent appointments may have been required to inspect public records in this case, JCBE subverted the intent of KRS 61.872(3)(a), which provides that a person may inspect public records during the agency's regular office hours. Our decisions have consistently found that "any attempt by a public agency to limit the period of time within which a requester may inspect public records places 'an unreasonable and illegal restriction' upon the requester's right of access." 93-ORD-48 (quoting OAG 80-641); see also 99-ORD-44; 03-ORD-083. Accordingly, the attempt to require an appointment subverted the intent of the Act insofar as it contemplates access to public records during an agency's regular business hours.
Procedural issues
Mr. Setters' appeal also raises two other salient issues in regard to the procedural requirements of the Open Records Act. First, he argues that a proper official custodian of records has not been designated by JCBE. KRS 61.876(1)(b) provides that a public agency shall adopt rules and regulations regarding public records that shall include "[t]he title and address of the official custodian of the public agency's records." KRS 61.870(5) states:
"Official custodian" means the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control[.]
(Emphasis added.) Mr. Setters argues that Bonnie Hackbarth is "an employee of a third-party contractor, Guthrie/Mayes Public Relations," as opposed to an employee of JCBE, and therefore cannot serve as official custodian of JCBE's records. In a response to this appeal dated November 9, 2015, Mr. Gorman, without specifying Ms. Hackbarth's employer, states as follows:
JCBE has designated the Director of Communications as the custodian of records to whom requests should be directed. . . . Bonnie Hackbarth is the Interim Director of Communication[s] and falls within the definition of an official custodian within KRS 61.870(5) as she is serving as the administrative officer of JCBE responsible for the maintenance, care and keeping of public records.
From the use of the disjunctive "or" in the statutory phrase "officer or employee," we conclude that an officer of a public agency need not also be an employee of the agency to be designated an official custodian of records under KRS 61.870(5). Therefore, as an officer of JCBE, Ms. Hackbarth is qualified to act in that capacity. 3
Secondly, Mr. Setters complains that the information required by KRS 61.876(2) was not displayed prominently as required by law in JCBE's central office, the Vanhoose Education Center, on the dates in question. KRS 61.876(2) provides:
Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public.
In his November 9 response, Mr. Gorman states as follows:
The JCPS Open Records Policy is posted in various locations around the Vanhoose Education Center, including but not limited to, information boards located in the following locations:
In addition to these locations, JCBE has now placed its Open Records Policy in the front lobby of the first floor of the Vanhoose Education Center[.] The first floor lobby is accessible to the general public and the sign is conspicuously placed. In addition, the front desk clerk at the Vanhoose Education Center has a folder of multiple copies of the JCBE Open Records Policy and has been advised to distribute the policy to anyone desiring a copy. Because the JCPS Open Records Policy was at all times posted at various locations and is now prominently posted at the entrance of the Vanhoose Education Center, Mr. Setters's claim that JCBE violated KRS 61.876(2) is rendered moot.
Based on the limited descriptions of the locations where the Open Records Policy was posted prior to this appeal, it is not apparent that any of them was "in a prominent location accessible to the general public. " A member of the general public who was not applying for a job, being assessed, or somehow already involved in operations of JCBE would not likely be present at any of the locations identified. Furthermore, the subsequent remedial measures described by Mr. Gorman are tantamount to an admission that the earlier postings were not adequate to comply with the statute. Therefore, we find that JCBE was not in compliance with KRS 61.876(2) on the dates in question.
Conclusion
For the reasons stated, we find that the intent of the Open Records Act was subverted to the extent that JCBE may have restricted Mr. Setters to inspection of public records by appointment only. Furthermore, to the extent Mr. Setters was merely directed to a website in lieu of producing the record or a copy thereof, this was insufficient to comply with the Act. Finally, we find that JCBE's central office was noncompliant with the posting requirements of KRS 61.876(2) as of early October 2015.
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 proceedings.
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