Request By:
Mr. Ross Julson, Superintendent
Carter County Schools
Carter County Board of Education
228 South Carol Malone Boulevard
Grayson, Kentucky 41143-1354
Opinion
Opinion By: Chris Gorman, Attorney General; William B. Pettus, Manager, Opinion Branch
Mr. George Wolfford, Senior News Writer with The Daily Independent , has appealed to the Attorney General pursuant to KRS 61.880, your denial of his open record request to inspect what he states is "a copy of a management letter, an integral part of an audit of a public school system."
Mr. Wolfford tendered an open record request to you by letter dated February 21, 1992. In this request, he sought inspection of "all the audit page which opens the issue . . .; the management letter mentioned in that opening; and all legally open documents dealing with personnel hearings in relation to the case." You responded by letter dated March 5, 1992, in part as follows:
I am in receipt of your letter dated February 21, 1992, requesting a copy of a letter written to me by Bill Jessie. The letter requested relates to the building level portion of an audit of 1990-91 Carter County School District fiscal activity. It is my position that this letter is a private communication between Mr. Jessie and me that could as well have been transmitted orally and was for the sole purpose of relaying day to day management information. As such, the letter is not an official document of the school district and therefore does not require public disclosure. Therefore, I am denying your request.
Mr. Wolfford promptly filed an appeal of this denial with this Office, transmitted by facsimile, in which he essentially requested that this Office hold that your denial is not consistent with the Open Records Law.
The undersigned Assistant Attorney General requested and received a copy of the public record in question pursuant to KRS 61.880(2). Without revealing the contents or substance of this letter, the undersigned Assistant Attorney General observes that this public record consists of five pages and is written by William J. Jessie to Mr. Ross Julson, Superintendent, and members of the board of education for Carter County. The letter is written on stationary of W. J. Jessie & Associates, Certified Public Accountants, with offices in Ashland, Kentucky. The letter pertains to an audit conducted by this CPA firm pursuant to contract. The letter is undated, but apparently was sent and received prior to a final "Independent Auditor's Report" dated October 19, 1991. This report was sent by W. J. Jessie & Associates to Mr. Ross Julson, Superintendent, and members of the board of education for Carter County. In the "Independent Auditor's Report," a reference to the public record sought for inspection in this appeal appears as follows:
During our audit of the Cafeteria Fund of one of the elementary schools, we observed several disbursements for payrolls which were apparently not properly approved. We have provided the School Board with details of these disbursements in a separate letter .
(Emphasis added.)
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(2) provides in part as follows:
If requested by the person seeking inspection, the attorney general shall review the denial and issue . . . a written opinion to the agency concerned, stating whether the agency acted consistent[ly] with provisions of KRS 61.870 to 61.884.
* * *
KRS 61.880(1) establishes some of the procedural requirements for a public agency when denying inspection and provides in part as follows:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, 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 with-holding 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.
Your March 5, 1992, denial letter to Mr. Wolfford's February 21, 1992, open record request failed to fully comply with these procedural requirements. First, you failed to respond to Mr. Wolfford's request within three (3) working days. Second, your denial letter failed to include a statement or reference to the specific exception authorizing the withholding of the record, which presumably was intended to be KRS 61.878(1)(g), which exempts from public inspection "correspondence with private individuals . . . ." It is expected that you shall fully comply with these procedural requirements when receiving a request for inspection of public records in the future.
Turning to the substance of this open records appeal, it appears that your denial was based upon KRS 61.878(1)(g) concerning "correspondence with private individuals . . . ." This Office finds your explanation of haw this exception applies to the public record withheld to be completely unpersuasive and untenable for the reasons below. We opine that you, on behalf of the Carter County Board of Education, failed to act consistent[ly] with provisions of KRS 61.870 to 61.884 and must promptly make the public record in question available for inspection and copying by Mr. Wolfford.
This Office has rendered many opinions concerning the applicability of KRS 61.878(1)(g) to public records allegedly involving correspondence with private individuals. In many opinions, we have upheld the agency denial based upon this statutory exception. OAG 91-229; 91-48; 91-21; 90-13; 89-86; 85-148; 83-385; 83-167; 83-79; 82-431; 81-88; and 79-69. This Office has also rendered many opinions in which we have held that the agency did not act consistent with the Open Records Law by invoking the exemption of KRS 61.878(1)(g) involving correspondence with private individuals. OAG 91-99; 90-142; 90-140; 90-7; 89-331; 84-284; and 83-425.
Having reviewed the document in question, this Office concludes that any argument that this document constitutes correspondence with private individuals is not credible and must be rejected. This document was referenced, albeit in a vague manner, in the "Independent Auditor's Report" by W. J. Jessie & Associates, the certified public accounting company, in connection with its contractual audit for the Carter County Board of Education. The five page letter was clearly sent to the superintendent and members of the Carter County Board of Education as part of its contractual obligation to perform an audit and submit an "Independent Auditor's Report."
[T]he correspondence at issue in this appeal cannot be considered correspondence with a private individual insofar as it was exchanged by a public agency and a corporation under public contract and involved issues pertaining to that contract.
OAG 91-99, at p. 4.
The five page letter, which is the public record in question in this appeal, was written by W. J. Jessie in his capacity as a certified public accountant with the company which bears his name, i.e., W. J. Jessie & Associates, and not in his personal capacity as a private citizen. Therefore, the exemption set forth at KRS 61.878(1)(g) which exempts, among other things, "correspondence with private individuals," is not applicable as suggested in your denial letter of March 5, 1992. OAG 90-140, at p. 4.
A contractor to a governmental entity . . . [here the Carter County Board of Education] 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. Such a contractor, in our view, loses any character of a 'private individual,' as such phrase is used in KRS 61.878(1)(g), that the contractor might be said to have, in connection with correspondence regarding administration or issues associated with administration of a governmental or public contract. Cf.,
Gertz v. Robert Welch, 418 U.S. 323 at 334, 94 S. Ct. 2997 at 3009 (1974).
OAG 90-7, at p. 4. (Emphasis in the original.)
There can be no doubt that your denial of this public record was not consistent with the Open Records Law. Reliance upon the exemption of KRS 61.878(1)(g) involving correspondence with private individuals was not appropriate. This public record should promptly be made available for inspection and copying by Mr. Wolfford. You may institute proceedings within thirty days for injunctive or declaratory relief in the circuit court of the district where the public records are maintained pursuant to KRS 61.880(5).