Request By:
Mr. Dan Edington
Ms. Terri B. DeAtley
Michael O. Murray, Esq.
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 Kentucky Community and Technical College System ("KCTCS") violated the Open Records Act in its disposition of Dan Edington's November 29, 2016, request for "a copy of all documents associated" with "a KCTCS EthicsPoint submission made on September 30, 2016 by Dan Edington from Madison Community College." For the reasons that follow, we find no violation of the Act.
On December 2, 2016, Terri B. DeAtley, Director of Policy Administration and Legal Analysis, responded to Mr. Edington on behalf of KCTCS. She stated:
[Y]our request for records . . . is denied in that at this time the records are exempt pursuant to KRS 61.878(1)(i) which exempts "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency" and KRS 61.878(1)(j) which exempts "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." No final action has been taken on the complaint by the agency at this time.
On December 7, 2017, after further inquiry, Mr. Edington was informed that Ms. DeAtley expected the review of his complaint to be completed by mid-January. Apparently no further communication between the parties took place before Mr. Edington initiated an appeal to this office on March 16, 2017.
In a response to the appeal submitted on March 27, 2017, KCTCS General Counsel Michael O. Murray stated as follows:
After our denial of his open records request on December 2, 2016, Mr. Edington has not sent another open records request. Per established precedent . . . agencies are not obligated to honor a "standing request" for records. Since Mr. Edington has not submitted a request after the date of completion, KCTCS has not failed to respond.
Should Mr. Edington submit a request, KCTCS will respond in accordance with the law.
In 10-ORD-065 (copy attached), we found that records which are part of an ongoing investigation are preliminary within the meaning of KRS 61.878(1)(i) and (j), and thus exempt from public inspection, until final action is taken on the matter. We hereby adopt the analysis in 10-ORD-065 as the basis for our decision that KCTCS did not violate the Open Records Act by withholding such records during the pendency of its investigation.
While KCTCS correctly notes that this office "has never recognized the validity of a standing request" for public records, 97-ORD-18 (quoting OAG 92-30), we do not regard Mr. Edington's request as a "standing request." Rather, he requested a specific set of records, which was properly denied under the facts then existing. Although KCTCS might have chosen to contact Mr. Edington when its investigation was complete, it was not obliged to do so, since the December 6, 2016, response was a final disposition of his request. Mr. Edington can renew his open records request at any time. Cf. 13-ORD-001. As to the request at issue, we find no violation by KCTCS.
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 proceedings.