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 Pike County Board of Education ("Board") violated the Open Records Act in the disposition of Justin Trout's August 23, 2017, request for copies of certain e-mails from July 2016 to August 2017. For the reasons that follow, we find that the Board violated the Act by failing to respond to a portion of Mr. Trout's request.
Mr. Trout's letter to the Pike County Board of Education stated as follows:
This is an open records request for any correspondence from the following email addresses which mention "Justin Trout" or "The Millard Area Technology Center" as well as any emails from "toddreba @bellsouth. net" to any of the addresses listed below, during the periods of 7/1/2016 to 8/15/2017.
. reed.adkins @pike. kyschools. us
. freddie.bowling @pike. kyschools. us
. danny.adkins @pike. kyschools. us
In an e-mailed response, which does not bear a date, the Board stated:
Attached are the documents you requested in your letter dated August 23, 2017. To the best of our ability and knowledge, the attached contains all correspondence from the emails of Superintendent Adkins, Mr. Bowling and Mr. Danny Adkins from 07/1/16 through 08/15/17. These are the emails that make mention of yourself and the Millard Area Technology Center.
Fourteen pages of e-mails were attached to the response.
Mr. Trout's undated appeal to this office was received on October 16, 2017. He argues:
The documentation that the board sent me on this matter is not even close to the amount of real emails that were sent regarding the topics mentioned above. In fact, I have copies of some emails from other agencies in which [sic] Pike County Schools failed to provide. I pray that the attorney generals [sic] office will investigate this injustice swiftly, as they will provide vital information to my employment appeal that is currently on-going. I know with 100% accuracy that the Pike County board of education has tampered, altered, or deleted files in an effort to cover up their injustices.
Mr. Trout has not provided this office with copies of any of the other e-mails he alleges to exist.
On October 23, 2017, the Board responded to the appeal with a letter from its General Counsel, Neal Smith, stating in part as follows:
I am unaware of any emails that [Mr. Trout] has that the Pike County School District failed to provide. I am further unaware of anyone with the Pike County School District having tampered, altered or deleted any emails for any reason. Again as stated in Mr. Trout's Appeal letter to the AG's office, I understood his open records request to include emails that mentioned Mr. Trout and the Millard Area Technology Center from the aforementioned email addresses. To my knowledge those have been provided.
We note that there is nothing in the record on appeal to confirm the existence of other e-mails in the categories mentioned by Mr. Neal. Therefore, we cannot conclude that the Board possessed any additional responsive e-mails from those three addresses on the basis of "mere assertions" of Mr. Trout. See 09-ORD-129.
Nevertheless, the Board has made no response to the portion of Mr. Trout's request that asked for e-mails sent to those three addresses from "toddreba @bellsouth. net." Although it is true that a public agency cannot afford a requester access to a record that it does not have or that does not exist, 99-ORD-98, it is "incumbent on the [agency] to so state in clear and direct terms," 01-ORD-38, and "a written response that does not clearly so state is deficient." 12-ORD-162 (emphasis omitted) (quoting 02-ORD-144). See also 14-ORD-013 (failure to address a portion of a request was a violation). The Board has never denied that it possesses records which are responsive to this portion of the request. While this alone does not prove that any relevant e-mails were withheld from Mr. Trout, "[a] failure to respond to an open records request is tantamount to a denial of the request without specific basis." 05-ORD-176 (citing 02-ORD-116). Thus, the Board violated the Open Records Act by partially failing to respond to the request as required by KRS 61.880(1).
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.