Request By:
Lynn M. Bynum, Esq.
Associate Superintendent
Office of Personnel Management
Department of Education
20th Floor
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Ms. Pamela A. Martin has appealed to the Attorney General pursuant to KRS 61.880 the failure of your office to respond to her request to inspect certain records in the custody of your office. She describes the material in question as the "Personnel file of Pamela A. Martin . . . and all correspondence related to employment and/or employee."
Ms. Martin said that when she requested to see the material in question she was told she would have to make an appointment to see you. You are the custodian of the records. On January 16, 1985 she took her "Request to Inspect Public Records" form to the Division of Personnel and submitted it to Mr. Dwayne Gatewood. She states that as of this date she has received no response to her request.
The undersigned Assistant Attorney General spoke with you by telephone on February 6, 1985. You stated that you were not in your office on January 16, 1985 when Ms. Martin came by with her request to inspect records. It was your understanding, after talking with Mr. Gatewood, that Ms. Martin was to come back to your office on January 17, 1985 and discuss the matter with you.
You were in your office on that day and would have permitted Ms. Martin to examine all or most of the contents of her personnel file. Ms. Martin did not show up at your office on January 17, 1985. You did not respond in writing to Ms. Martin's request because you thought she would appear in your office on January 17, 1985. Mr. Gatewood also has stated to the undersigned, in a telephone conversation on February 6, 1985, that he thought Ms. Martin would return to your office on January 17, 1985. He said she needed to discuss with you matters pertaining to open records as he would not make a decision on the request at that time.
OPINION OF THE ATTORNEY GENERAL
Although the problem in this situation apparently resulted from a misunderstanding between your office and Ms. Martin as to whether or not she would return to your office on January 17, 1985, the fact remains that your office did not comply with the provisions of KRS 61.880(1), a part of the Open Records Law of this state. At this point there has been no denial of the request to inspect the records in question, and, from what you have stated, the Department of Education will probably allow Ms. Martin to inspect the documents with which she is concerned.
However, KRS 61.880(1) states in part as follows:
"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. . . ." (Emphasis added.)
Thus, the public agency is mandatorily required to notify the requesting party of its decision in writing within three days. While you may have in good faith expected Ms. Martin to return to your office on January 17, 1985, when she did not, you should have followed through with the required written notice which still could have been timely sent. The notice should have advised the requesting party that the records in question would be made available for inspection or set forth specific reasons why the records could not be inspected.
This Office said in OAG 83-248 and in OAG 82-342, copies of which are enclosed, that it is a failure to comply with the Open Records Law, specifically KRS 61.880(1), when no written response is made within the specified period to a request to inspect public records in the custody of a public agency.
It is the opinion of the Attorney General that you have not acted in accordance with the requirements of the Open Records Law, specifically KRS 61.880(1), since you have neither made the requested records available for inspection nor advised the requesting party in writing of a specific reason why the records could not be inspected.
As required by statute a copy of this opinion is being sent to the requesting party who has the right to take further action in court if she is not allowed to inspect the documents in question or given an appropriate response within 30 days. Furthermore, the public agency is authorized to challenge this opinion in Circuit Court. KRS 61.880(5).