Request By:
Ms. Charlotte Dowdy
Director of Purchases
Morehead State University
205 Howell-McDowell Administration Building
Morehead, Kentucky 40351-1689
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
On behalf of Elevator Constructors Local Union #20, Mr. William Tabler has appealed to the Attorney General, pursuant to KRS 61.880, your handling of his April 29, 1992, request to inspect certain records in the possession of the Office of Business Services-Purchasing. Those records are identified as documents relating to elevator service and maintenance between Morehead State University and Abell Elevator Company. Specifically, Mr. Tabler requested access to:
1. The current contract for elevator service;
2. Any and all change orders and contract renewals;
3. Any requests for additional payments, whether part of the contract or not;
4. The names of mechanics assigned to work at Morehead;
5. The names of helpers, trainees, or other individuals assigned by Abell to work at Morehead State University;
6. The dates and hours each employee has worked on the Morehead campus;
7. Any bonds, insurance, or other documents furnished by Abell relating to this contract.
As of the date of his appeal, Mr. Tabler had not received a response to his request.
Mr. Joe Planck, Director of the Office of Physical Plant at Morehead, responded to Mr. Tabler's request in a letter dated June 9, 1992. That response stated in full:
Per your request dated April 29, 1992, enclosed is a copy of Morehead State University's current contract with Abell Elevator International and copies of additional payments for services rendered not covered by the contract. One mechanic, Richard Gambil, is assigned to provide the service under our contractual agreement. Abell Elevator provides backup mechanics and additional coverage as needed. We do not maintain a record of the hours worked by mechanics from Abell Elevator.
Mr. Planck did not indicate whether any documents exist which satisfy Mr. Tabler's second and seventh numbered requests.
In a conversation with the undersigned on July 1, 1992, you explained that although no documents existed which satisfied Mr. Tabler's second numbered request at the time that request was made and Mr. Planck's response was issued, Morehead renewed its contract with Abell Elevator shortly thereafter. You indicated your willingness to release this document along with a number of other documents satisfying his seventh numbered request. Those documents consist of the renewal contract, the contract for 07/01/91-06/30/92, the performance bond, and proof of insurance.
Mr. Tabler asks that we review your handling of his request to determine if your actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that although your decision to release the requested records was consistent with the Act, your response was procedurally deficient.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) contains specific guidelines for an agency's response to a request under the Open Records Act. That statute 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. Any agency response denying, in whole or in part, inspection of any records 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.
In addition, KRS 61.880(2) requires that a copy of the written response denying inspection be forwarded immediately to the Office of the Attorney General.
Mr. Planck's response to Mr. Tabler's request was procedurally deficient insofar as it was not issued within three working days. Some twenty-eight working days elapsed between the date of the request and the date of the response. Allowing for delays in the mail, Mr. Planck's response was nevertheless untimely. Additionally, his response was not issued by the official custodian, nor, apparently, under his or her authority. As we noted in OAG 91-109, at p. 4, we believe that it is imprudent to entrust the weighty responsibility of responding to open records requests to individuals who may have little or no knowledge of the Act. There we advised that if a request is made for a record which is not housed in the custodian's office, it should be transmitted to, and reviewed by, the custodian for a determination of the propriety of release. At a minimum, the custodian should review any denial of an open records request to insure that it conforms to the referenced provisions.
Turning to the substantive issues raised in this appeal, we find that your actions were consistent with the Open Records Law. You have acknowledged your obligation under that law to release all documents pertaining to the contractual relationship between Morehead and Abell Elevator. As we noted in OAG 90-7, at p. 7:
A contractor to a governmental entity . . . must accept certain necessary consequences of involvement in public affairs. Such a contractor, whether a corporation or an individual human being, runs the risk of closer public scrutiny than might otherwise be the case.
See also, OAG 91-99. Accordingly, your response to Mr. Tabler's request, although procedurally deficient, was substantially correct.
As required by statute, a copy of this opinion will be sent to Mr. William Tabler. Both Mr. Tabler and Morehead State University may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5).