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 University of Louisville violated the Open Records Act in the disposition of Dr. Bruce M. Tyler's June 20, 2016, request for a copy of a University policy. For the reasons that follow, we find that the University failed to make a timely response to the request, but otherwise did not violate the Act.
Dr. Tyler's request was sent to Dr. Marie Kendall Brown, Assistant Director for Teaching & Learning at the Ekstrom Library, at 11:47 p.m. on June 24, 2016, as follows:
What is your policy on forced participation in your Teaching and Learning programs and where is that policy stated? Can you send a copy to me ? Also, do you know the percentage rule in Student evaluation, for example, 5=A, B=4, C=3, D=2 and F=1 and 0. What are the plus and minus ranges, if you know?
(Emphasis added.) Dr. Brown replied on June 24, 2016, that "Delphi Center programs, services, and instructional consultation services are open to all UofL faculty who elect to participate."
On July 30, 2016, Dr. Tyler replied, "Where is your rule guide lines? Can you simply email it to me? I'd like to have a copy or do I have to go through the KY Open Records process if you are unwilling to make it available." Dr. Tyler initiated an appeal bearing the same date, which was received in this office on July 7, 2016.
On July 11, 2016, Dr. Brown replied to Dr. Tyler, apologizing for the delay due to her having been out of her office on vacation. She responded that no such policy existed as described in the request. On July 13, 2016, University Senior Compliance Officer Sherri F. Pawson responded to Dr. Tyler's appeal, stating:
I was unaware of these exchanges until I was notified of the AG appeal. I was not included on any of the emails, they were not provided to me by Dr. Brown or Dr. Tyler. I believe, as did Delphi Center folks, Dr. Tyler was asking for information and not making an open records request therefore I was not included on this earlier correspondence.
Ms. Pawson went on to state that she received an open records request from Dr. Tyler on July 1, 2016, which indicated his knowledge that she was the University's records custodian.
We find that Dr. Tyler's question "Can you send a copy to me?" was sufficient to articulate a request for public records, as opposed to a mere request for information. The Open Records Act does not require "specific legal terminology when tendering" an otherwise proper request for public records. 1 03-ORD-184, n.1.
KRS 61.880(1) requires a public agency to respond to a request for public records within three days, excluding weekends and legal holidays. Furthermore, KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
Therefore, although Dr. Brown was not the official custodian of records, she was required to respond to the request within three business days or direct Dr. Tyler to the proper custodian. We therefore find a procedural violation of the Open Records Act.
Substantively, however, it appears that no policy existed meeting Dr. Tyler's description. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, we find no substantive violation of the 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 proceedings.
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