Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Fayette County Public Schools (FCPS) violated the Open Records Act in responding to Laura Glasscock's request for records regarding a truancy complaint against her child. We find that FCPS violated the requirements of the Act in failing to timely respond to Ms. Glasscock's request and in failing to inform her of when all responsive records would be provided.
Ms. Glasscock sent a letter, dated December 20, 2016, to FCPS requesting a broad range of records 1 relating to a truancy complaint issued regarding her child, a student in the Fayette County Public Schools. Ms. Glasscock did not receive a response to her records request and so she called the office of FCPS's general counsel on January 11, 2017, to inquire about her request. Later that evening, she received, by email, FCPS's response to her request.
In her letter of appeal, Ms. Glasscock alleges that the records sent to her were "severely incomplete" but also contained documents that she had not requested. Ms. Glasscock stated "[t]his technique, which in my profession we call a document dump, appears diversionary. " On January 12, 2017, she sent an email to FCPS detailing "what was missing" and "asking again for the documents that originally were requested." She again communicated via email with FCPS on January 18, 2017, and was advised that there was a problem with getting access to emails. Ms. Glasscock stated that FCPS "appeared to offer quid pro quo" by asking her, in an email, "Just to confirm, if truancy is dropped, are you still wanting to go forward with your open records request?" Ms. Glasscock closed her letter of appeal by stating, "I further fear records may be destroyed. "
Shelley Chatfield, General Counsel, FCPS, responded to the appeal on February 2, 2017, and provided copies of records regarding Ms. Glasscock's Open Records request and appeal. Ms. Chatfield states that the request was received by her office on Thursday, January 5, 2017, and that the district paralegal sent an email that day to begin the collection process. "On January 11, 2017, Ms. Glasscock was sent all the documents collected responsive to her request." In response to Ms. Glasscock's complaint that the response was a "document dump, " Ms. Chatfield explained that the request for emails pulled up "numerous emails, some with attachments" and that the requests for various types of correspondence and reports retrieved many documents. "In responding to an Open Records request, we do not filter based on our own subjective opinion of what the requester might want and not want. We provide the documents the requester requested."
When Ms. Glasscock contacted FCPS on January 12, 2017, regarding "what was missing from the response," the paralegal responded that she "would ask the district technology department to pull the emails again." On January 18, 2017, "Ms. Glascock sent the paralegal an email requesting she add another person to her list of emails she wanted from the technology department. . ." and the paralegal "advised her there was a temporary problem with the server that he uses to access emails. " She was further advised, "that a phone technician was working with Windstream to attempt to obtain phone records requested."
In response to Ms. Glasscock's charge that FCPS "appeared to offer quid pro quo" by telling her that FCPS "can retract" the truancy charges, Ms. Chatfield responded that on "January 18, 2017, an Associate Director of Pupil Personnel contacted the paralegal and notified her that they had discovered that Ms. Glasscock's [child] was now enrolled in [an alternative instructional program]. It was approved on January 2. That office contacted [the child's] court designated worker that same day, and the complaint was to be withdrawn."
In determining whether FCPS complied with the Act in regards to Ms. Glasscock's request, we first note the apparent delay between Ms. Glasscock's letter of December 20, 2016, and the receipt of that request, sixteen days later, on January 5, 2017. Having reviewed the record in this appeal, this office finds that it is unable to clarify the apparent delay in the receipt of the Open Records request. However, as the district paralegal had received Ms. Glasscock's request no later than Thursday, January 5, 2017, FCPS was required by KRS 61.880(1) 2 to notify her of its decision regarding the Open Records request, by Tuesday, January 10, 2017. FCPS did not notify Ms. Glasscock of its decision to comply with her request until the evening of Wednesday, January 11, 2017, which was one day later than the three-day period established by KRS 61.880(1). We understand that an intervening snowstorm caused schools to be released early on January 5, and to be closed on January 6, and those interruptions may have contributed to the late response. While this appears to be a practical and understandable reason for delay, the legislature did not include such intervening closures in its three (3) day response requirement. We are bound to interpret these cases by the language of the Act. 16-ORD-128. The record of this appeal documents that FCPS violated KRS 61.880(1) when it failed to respond to Ms. Glasscock within the three-day time period established by that statute.
FCPS also failed to comply with KRS 61.872(5), 3 in regards to the telephone records requested by Ms. Glasscock, when it did not notify her of "the place, time, and earliest date on which the public record [would] be available for inspection." The record shows that Ms. Embry, the district paralegal, did not contact the "district phone technician" until January 14, 2017, regarding Ms. Glasscock's request for "[t]elephone records indicating calls placed by the administrators listed above to George Glasscock and/or myself at [phone numbers] from Oct. 2, 2016 to present." The record establishes that, as of January 20, 2017, 12:20 p.m., Ms. Embry had not received the requested telephone records from the technician. These emails show that FCPS did not attempt to gather the responsive telephone records until nine days after receipt of the Open Records request and failed to notify Ms. Glasscock when those records would be available. Likewise, Ms. Glasscock had included the name of Jill Blackman, family resource coordinator, in her initial request, for correspondence. On January 18, 2017, Ms. Glasscock notified FCPS that the response of January 12, 2017, did not include any such correspondence from Ms. Blackman. Ms. Chatfield's response to this appeal does not indicate whether there are any responsive records to this request or, if they do exist, when they will be provided. This lack of notification to Ms. Glasscock regarding Ms. Blackman's correspondence and emails also constitutes a violation of KRS 61.872(5).
Ms. Glasscock referred to FCPS's response of January 11, 2017, as a "document dump" and stated that it appeared diversionary. Pursuant to KRS 61.880(4), if a person feels that the intent of the Open Records Act is being subverted by an agency short of denial, then "the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied." Where parts of Ms. Glasscock's request were broadly framed, such as "all email and/or correspondence, memoranda or reports. . .," and "[c]opies of MMS-generated letters, conference or meeting requests, emails, notes, or other communications from the administrators listed above. . .," it is reasonable to expect that the response may likewise be sufficiently broad to ensure compliance. See 14-ORD-065 (where requester claimed that 5,213 pages of 6,023 pages produced in response to an Open Records request were not responsive to the request, the response did not subvert the intent of the Act due to the broadly framed nature of the request). Having reviewed the records produced in response to Ms. Glasscock's request to this point (over 140 pages by her count), we find that the records are not so voluminous, or containing so many nonresponsive records, that they preclude her from conducting her own meaningful review of those records.
Ms. Glasscock also stated that FCPS notified her on January 18, 2017, that it could withdraw the truancy complaint against her child and then, later that same day, was asked by Ms. Embry, by email at 11:23 a.m., "Just to confirm, if truancy is dropped, are you still wanting to go forward with your open records request?" Ms. Glasscock interpreted these emails as "quid pro quo. " We understand that Ms. Glasscock was interpreting these emails to mean that FCPS would withdraw the truancy complaint if Ms. Glasscock would withdraw her Open Records request. Having reviewed the records provided, and Ms. Chatfield's response to this appeal, we cannot determine that the withdrawal of the truancy complaint was conditioned upon the withdrawal of the Open Records request. The withdrawal of the truancy complaint was already in progress before Ms. Embry's email of 11:23 a.m., January 18, 2017. Ms. Embry's notification to Ms. Glasscock of the withdrawal of the truancy complaint was sent at 9:15 a.m. At 10:05 a.m., Ms. Embry's email elaborated on the actions that had already been taken, and were being taken, 4 in withdrawing the truancy complaint. It was only later that morning that Ms. Embry asked if Ms. Glasscock wanted to withdraw her Open Records request. While Ms. Embry's request (about going forward with the Open Records request) could be interpreted as Ms. Glasscock has done, the circumstances indicate that the request was not intended to subvert the intent of the Open Records Act by conditioning withdrawal of the truancy charge upon withdrawal of the request. FCPS had already gone to the effort of retrieving the bulk of Ms. Glasscock's request and its efforts to fulfill the remainder of her request were in progress. It appears more likely than not that Ms. Embry's phrasing of her query ("[I]f truancy is dropped, are you still wanting to go forward with your open records request?") was merely inartfully phrased so as to be subject to a negative connotation. We cannot determine that this request was intended to subvert the intent of the Open Records Act.
Finally, in response to the statement that "I further fear records may be destroyed, " Ms. Glasscock provided no basis for this office to determine that any public records are in danger of being destroyed in violation of any law for which this office is responsible. Having no evidence of any kind to support this contention, we cannot find a violation of the Open Records 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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
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