Request By:
Dr. Alan A. Johnson
Professor of Materials Science
Speed Scientific School
Office of the Dean
University of Louisville
Louisville, Kentucky 40208
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General on several questions pertaining to your request to inspect certain records of the University of Louisville.
You ask the Attorney General to rule whether the University of Louisville has violated the Kentucky Open Records Law, KRS 61.870-61.884, by failing to adopt and post rules and regulations as required by KRS 61.876. Since we have not previously issued an opinion on the general question of regulations under this statute, we will do so at this time. KRS 61.876 reads as follows:
"(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
"(a) The principal office of the public agency and its regular office hours;
"(b) The title and address of the official custodian of the public agency's records;
"(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies;
"(d) The procedures to be followed in requesting public records.
"(2) Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public.
"(3) The executive department for finance and administration may promulgate uniform rules and regulations for all state administrative agencies."
The statute mandates that each public agency shall adopt rules pertaining to access to public records. For an agency to fail to do so would constitute a technical violation of the statute. However, there are certain practical considerations involved in regard to regulations. In the first place, there is no penalty provided for failure to adopt and post regulations. Secondly, the statute itself is so detailed that an agency really needs only to adopt rules as to its principal office, its regular office hours, its official custodian, fees to be charged, and the procedures to be followed in requesting public records. Regulations we have seen which have been adopted by various agencies, except for the above particular matters, are mainly a rewrite of the statute. There is no need for an agency to, for instance, make regulations as to exceptions since the statute fully covers the subject of exceptions. The statute also sets forth the general procedures in requesting public records. We have seen some agency regulations which actually made it more difficult to gain access to a public record than it was before the Open Records Law became effective.
It is therefore our opinion that an agency should adopt and post a notice setting forth the names and details called for by KRS 61.876(1)(a)(b)(c)(d). This will answer the questions of when, where, who and how for inspecting a public record. It will also provide the fee for obtaining a copy.
In reviewing the interchange of letters between you and Dr. William J. Morison which has taken place during April and May of this year, it appears that there has been no uncertainty as to the procedure of handling University records. Dr. Morison is the official custodian and he has made a prompt response to all of your requests. We can see no material violation or subversion of the Open Records Law as far as procedure is concerned.
You also ask us to give an opinion as to whether Dr. Morison's responses to you were correct as to substance. Since all of your requests involved the inspection of letters written by and to University officials and employees, they are at once suspect of possibly falling within one of the exemptions of KRS 61.878. Dr. Morison cites the exemption of preliminary drafts, notes and correspondence with private individuals. KRS 61.878(1)(g).
Of course, not all University correspondence is exempt under the law. Official communications between government agencies and agency heads would not be classified as private correspondence. Also, correspondence which has an official effect, such as a letter of resignation, might not be exempt. However, your request that you be given copies of all letters of resignation, threatening letters, or letters offering to resign may place an unreasonable burden upon the University, since it would require a sifting of their records to find the letters fitting your specifications. Also, many of such letters may in fact be of a private nature and express opinions.
The Attorney General is authorized to request an agency to send him a disputed document for the forming of an opinion. Before this can be done, the requester must necessarily pinpoint which document he is requesting so that the Attorney General can precisely describe it to the agency.
Finally, you have requested that the Attorney General give an opinion as to whether Dr. Morison has been guilty of the willful withholding of the records which you have requested. We can see no indication of any willful evasion of the Open Records Law on the part of Dr. Morison. He has answered your requests promptly, courteously and seriously. He has complied with the mandate of the statute to specify the reason or reasons for denying access to the documents.
In conclusion, we suggest that the University fully comply with the Open Records Statute by posting the necessary information as indicated herein. If there is an unresolved dispute as to whether a particular document is being withheld from your inspection illegally, you may appeal to the Attorney General as provided by KRS 61.880 .