Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Summary : Clark County Public Schools subverted the intent of the Open Records Act by failing to provide requested records for almost four months. Clark County Public Schools violated procedural requirements of the Act by failing to respond to open records request within three days and by failing to provide a detailed explanation of why it could not provide the requested records within three days. Office of Attorney General cannot resolve a dispute relating to discrepancies, if any, between the records provided to requester and those being sought.
Open Records Decision
The issue presented in this appeal is whether Clark County Public Schools ("CCPS") violated the Open Records Act in its disposition of a request for copies of contracts or proposals for HVAC services. For the reasons stated below, we find that CCPS violated procedural requirements of the Act and subverted the intent of the Act by delaying production of public records for almost four months. This office cannot resolve a dispute relating to discrepancies between the records provided and those sought.
On January 30, 2018, Megan Lyons, attorney with Ward Hocker Thornton, faxed a letter to Greg Hollon, Director of Pupil Personnel, Clark County Public Schools, requesting certain records regarding contracts and contract proposals with Mark Saunier and Comfort and Process Solution, Inc. Having received no response to the request, Taylor Shepherd, also of Ward Hocker Thornton, emailed Donald Stump, Maintenance Supervisor, Clark County Schools, and Greg Hollon, on February 5, 2018, to inquire about the records request. 1 On February 6, 2018, Mr. Stump replied via email that "we have begun pulling documents this morning. " On May 14, 2018, Ms. Lyons emailed Paul Christy, Superintendent, Clark County Schools, Mr. Stump, and Mr. Hollon, stating that she had not received any records in response to her request. By email May 29, 2018 to Ms. Lyons, Mr. Stump stated: "With the addition of the Board Minute archive documents, these hard copies are now all records we have available referencing your request. As was recently reported, all financial records are no longer maintained by our organization beyond the 3 year requirement." He stated that the records were available for pick up at the CCPS Central Office location. Ms. Lyons appealed CCPS' disposition of her request to this office by letter dated May 21, 2018.
On May 30, 2018, Mr. Christy responded to the appeal by letter, stating that Clark County Public Schools had searched its records and compiled a set of records for Appellant's review. Mr. Christy stated that the records were "voluminous" and so they were being offered on site, but copies would be available if requested. By letter dated June 4, 2018, Appellant responded that the records produced by CCPS:
? did not include any email communication between Superintendent Paul Christy and Mark Saunier (formerly of Comfort and Process Solutions, Inc.) or other CPS or Performance Services employees. We are requesting copies of any email communication, between Mark Saunier and any employee of Clark County Public Schools concerning CPS or Performance Services projects at Campbell Junior High, Baker Intermediate School, and Strode Elementary Schools, including Superintendent Paul Christy.
Violation of KRS 61.880(1) . CCPS was obligated by KRS 61.880(1) 2 to notify Ms. Lyons within three days, after receipt of the request as to whether it would comply with her records request. Ms. Lyons provided a fax receipt showing that the initial request of January 30 was successfully sent to Greg Hollon, CCPS. 3 CCPS did not respond until February 6, after Mr. Shepherd had emailed CCPS about the request. The record on appeal shows that CCPS violated the procedural requirement of KRS 61.880(1) by not responding to the request within three days after receipt.
Violation of KRS 61.872(5) . The record on appeal indicates that CCPS failed to comply with the procedural requirement of KRS 61.872(5). 4 That statute requires an agency to provide a detailed explanation of the cause for delay in the disclosure of responsive records beyond three days, and to indicate the earliest date on which the records will be disclosed. Because CCPS did not fulfill Appellant's request within three business days, it was legally obligated to notify her, in writing, on the third working day pursuant to KRS 61.872(5), when the records would be available. We recognize that the records may have been voluminous, or required time to collect, but those delays should have been communicated in accordance with KRS 61.872(5). CCPS' February 6 email response noting that it had "begun pulling documents this morning" did not satisfy the strict requirement found at KRS 61.872(5). See, e.g. , 01-ORD-38 (university violated KRS 61.880(1) and KRS 61.872(5) by failing to produce nonexempt records within three business days, or, alternatively, to provide requester with a written and detailed explanation of the cause for delay and the earliest date certain on which the records would be available). The record, without further explanation, gives the appearance that CCPS delayed almost four months before providing the responsive records. The Attorney General has consistently recognized that procedural requirements of the Open Records Act "are not mere formalities but are an essential part of the prompt and orderly processing of an open records request." 04-ORD-084, p. 3, (citing 93-ORD-125, p. 5); 05-ORD-190; 09-ORD-186; 12-ORD-085. The record on appeal indicates that CCPS subverted the intent of the Open Records Act, short of denial, by delaying production of all responsive records by almost four months. 13-ORD-004 (unwarranted delay of nine and one half weeks in production of responsive records subverted the intent of the Open Records Act) .
Disputed Records . Ms. Lyons believes that not all responsive records have been produced for her review. She expected to be provided "copies of any email communication, between Mark Saunier and any employee of Clark County Public Schools concerning CPS or Performance Services projects at Campbell Junior High, Baker Intermediate School, and Strode Elementary Schools, including Superintendent Paul Christy[,]" but such records were not provided. CCPS stated that it had produced "all records we have available referencing your request."
With respect to factual disputes of this nature between a requester and a public agency, the Attorney General has consistently recognized:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully[,] any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-61, p. 2 (citing OAG 89-81, p. 3).
The record on appeal does not contain sufficient information for this office to resolve the factual dispute between the parties regarding the disparity between records which have been provided, and those sought but not provided. Accordingly, the parties should consult and mutually cooperate to resolve any differences or misunderstandings related to the requested records.
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.
Footnotes
Footnotes
1 There is a reference in Mr. Shepherd's email that the open records request was initially sent in September 2017, but that there was no answer to that request. The record on appeal does not include such a request and we are therefore unable to address it in this decision.
2 KRS 61.880(1) provides: "Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action."
3 KRS 61.876(1) requires public agencies to adopt written rules and regulations aimed at providing full access to public records that include the title and address of the official custodian of the public agency's records. The record in this appeal does not reflect the identity of the records custodian for CCPS. As CCPS did not contest the issue in the appeal, we must presume that CCPS did not object to the request being sent to Mr. Hollon.
4 KRS 61.872(5) provides: "If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection."