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 Floyd County Board of Education ("the Board") violated the Kentucky Open Records Act, specifically KRS 61.880(1), in failing to issue a timely written response upon receipt of John Hicks' December 1, 2017, request for certain public records. For the reasons stated herein, we can find no violation of the Act.
Mr. Hicks' somewhat confusingly-worded request, addressed to Interim Superintendent Stephen A. Trimble, stated as follows:
Send record to show that the Floyd County School board has documentation from an ADMONISHMENT to show that I'm not suitable to teach in your school system.
Send record to show that the Floyd County School board has documentation from an ADMONISHMENT to show MELISSA DIANE TURNER, CHERYL HALL, GERI TURNER AND BARRY HALL is [sic] not suitable to teach in your school system.
Please note: "that I ask [sic] you once before to send records dating back to 01 of any teacher/ teachers that's had action taken on their certificate for a violation and was ADMONISHED, SUPENDED, AND OR REVOKED for it." You said: "There are no records on file that match this request". (you should have a record because Henry Webb did!) At least have access to the record from the Education Professional Standards Board.
Send record of the certified letters that Henry Webb sent me to find me unsuitable. One letter was dated December 12, 2011 and another one was November 15, 2015.
Send record to show how you, the superintendent, and the 5 Floyd County School Board Members can determine how a teacher can be qualified to teach when the Regulation (16 KAR 2:120-Qualified Teacher) , says that there's documentation on file from an admonishment to deemed [sic] the 4 teachers mentioned above, including me, unsuitable for appointment.
Send record to show that a teacher/ teachers who got issued an emergency certificate for the year 2014-15 school year, 2015-16 school year, 20016-17 [sic] school year to teach Learning Behavior Disorders K-12 grades, Art K-12 grades, Elementary ed-K-8, and Social Studies 7-12 and [sic] still can use the same emergency certificate to teach on presently [sic] 2017-18 school year. Send record to show that these teachers that got issued an emergency certificate years ago are still using the same certificate to teach on now.
Mr. Hicks' appeal to this office was received on February 13, 2018. He includes a copy of a response dated December 3, 2017, from the Board's Human Resources Director, stating as follows:
1. Letter is enclosed.
2. No documents available.
3. No documents available.
4. No documents available.
No documents available
We note at the outset 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. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Furthermore, a public agency is not required to honor a mere request for information or to create a record in response to an open records request. 13-ORD-109; 12-ORD-026. In his appeal, Mr. Hicks does not dispute the nonexistence of any responsive records beyond what was provided to him; he merely complains that he was not timely informed of the records' nonexistence. As to the issues of duty to honor requests for information or duty to create a record, he pronounces these matters "irrelevant."
The sole issue raised by Mr. Hicks on appeal is the timeliness of the Board's response under KRS 61.880(1), which requires a written response to a request for public records within three days, excluding weekends and legal holidays. In support of his argument, Mr. Hicks asserts that the Board's December 3, 2017, response letter is a "false document. "
In January 2018, Mr. Hicks made a previous attempt to file this appeal, which was deemed unperfected due to his failure to include a copy of the agency's written response as required by KRS 61.880(2)(a). 1 In responding to that unperfected appeal, the Board provided a copy of its December 3, 2017, response to his request, as part of a mailing dated January 10, 2018. Mr. Hicks now alleges that he did not receive the December 3, 2017, response prior to January 2018, and claims that the letter is "a false document" "made up" after the fact. His sole purported evidence for this claim is the envelope in which a copy of the letter was mailed on January 10, 2018, in connection with the unperfected appeal. We do not regard the fact that a copy of the same letter was mailed on January 10 as any evidence as to its authenticity or whether it was previously mailed on December 3.
This office cannot conclusively resolve a factual dispute concerning the actual sending, delivery, or receipt of a document. See 12-ORD-204. In the absence of any proof that the Board did not in fact send its response on December 3, 2017, this office is unable to determine that any violation of KRS 61.880(1) occurred. We therefore find no 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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