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 University of Louisville ("University") violated the Open Records Act in the disposition of instructor Bruce Tyler's request dated July 16, 2018, for copies of "[t]he Deans' reviews of my . . . Annual Merit Reviews for the years" 1991-2000 and 2005-2009. For the reasons that follow, we find no substantive violation of the Act.
On August 9, subsequent to the filing of this appeal, the University provided Dr. Tyler the responsive records for the years 1991-1993 1 and 2009. As to those four years, therefore, this appeal is moot. 04-ORD-046; 03-ORD-087; OAG 91-140.
With regard to the remaining reviews, pertaining to the years 1994-2000 and 2005-2008, we find that the University committed a procedural violation of the Open Records Act. The record on appeal indicates that the University's records custodian received Dr. Tyler's request on July 30, 2018, and issued an initial response on August 1, 2018, stating simply: "I remember that you've made similar requests for these records in the past. I need additional time to pull those old files, determine [ sic ] what, if any, records need to be pulled from storage. I will provide an update early next week."
KRS 61.880(1) requires that a public agency make a disposition of a request for public records within three days, excluding weekends and legal holidays. The University's initial response articulated no legally sufficient reason for a delay past August 2, 2018, in producing the requested records. Pursuant to KRS 61.872(5):
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.
(Emphasis added.) The University did not assert on August 1, 2018, that the records were "in active use, in storage, or not otherwise available." Indeed, the records custodian had not even determined whether any records "needed to be pulled from storage. " Furthermore, "KRS 61.872(5) envisions designation of the place, time, and earliest date certain , not a projected or speculative date, when the records will be available for inspection. " 01-ORD-38 (emphasis in original). Since the University, in its initial response, 2 did not state that any records were unavailable and gave no date certain for providing them, we find that it failed to satisfy the conditions of KRS 61.872(5) and therefore violated KRS 61.880(1) with respect to timeliness.
On August 6, 2018, the University issued a second response to Mr. Tyler, in which it denied his request for his merit review letters for 1994-2000 and 2005-2008 because the University had already "provided these documents to you in response to earlier open records requests. " We find nothing in the record on appeal to refute this assertion by the University. Duplicative requests for records, in general, need not be fulfilled again. In 95-ORD-47, this office stated that an agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting that request." Consequently, in 04-ORD-018, we found that a prisoner who had inspected his inmate file once was not entitled to view it again unless he could "explain the necessity of reproducing the same records which either already have been provided or have been inspected by him, such as loss or destruction of the records." Since Dr. Tyler has provided no justification for his duplicative request for the records in question, we find no substantive 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 proceedings.
Footnotes
Footnotes
1 The University noted that in 1991-1993 the reviews were performed by the chair rather than the dean, but nevertheless provided the documents to Dr. Tyler in order to comply with the substance of his request.
2 In its next letter to Mr. Tyler, dated August 6, 2018, the University did notify Mr. Tyler that records were in storage and gave a date for a final response, but the August 6 response was not timely under KRS 61.880(1).