Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of the Jefferson County Board of Education, through its Chairperson, Ms. Carol Ann Haddad, in responding to Mr. Bob Schmitt's July 19, 1993, request for copies of the completed input forms submitted by persons involved in the selection and recruitment of the new superintendent of the Jefferson County Public Schools. Mr. Schmitt, who is a member of the Board of Education, requested that the copies be delivered to his office by noon on July 26. His request was made under the Open Records Act.
On July 19, Ms. Haddad responded in writing to Mr. Schmitt's request, advising him that she would deliver the forms to his office on Thursday morning, but would wait while he reviewed them. Mr. Schmitt indicates that Ms. Haddad verbally informed him that the input forms "were confidential information for her only," and that copies would not be made available to him.
In his letter of appeal to this Office, Mr. Schmitt maintains that the input forms should be made available to him and the other members of the Jefferson County Board of Education. He urges this Office to issue a decision consistent with this view.
We are asked to determine if the Jefferson County Board of Education, through Ms. Haddad, violated the Open Records Act by refusing to make copies of the requested records available to Mr. Schmitt. For the reasons set forth below, and assuming the facts to have been fairly and accurately presented by Mr. Schmitt, we find that Ms. Haddad's actions violate the Act.
Kentucky's Open Records Act provides that "all public records shall be open for inspection by any person, except as otherwise provided" in the Act. "Public records" consist of "all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings or other documentary materials regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). This all encompassing definition clearly includes the input forms which were returned to Ms. Haddad as Chairperson of the Jefferson County Board of Education. Contrary to Ms. Haddad's apparent belief, and the promise of confidentiality contained on the input forms, the forms are subject to public scrutiny, and scrutiny by other members of the Board, if they are also nonexempt "open records." 1
KRS 61.880(1) provides, in part:
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. An agency response denying, in whole or in part, inspection of any record 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 action.
Upon receipt of an application to inspect public records, a public agency, through its official custodian of records, is charged with the duty of notifying the applicant in writing of its decision either to comply with the request or to deny the request. 2 On those occasions when the agency denies access to the records, the written notification must include a statement of the exception authorizing nondisclosure and a brief explanation of how the exception applies to the records withheld.
If Ms. Haddad is not the official custodian of records for the Jefferson County Board of Education, as defined at KRS 61.870(3), she is obligated to so notify the applicant and furnish him or her with the name and location of the custodian, if such facts are known to her. KRS 61.872(4). If she is the official custodian, her response must be treated as final agency action. KRS 61.880(1). Inasmuch as Mr. Schmitt's request was clearly identified as an open records request, and Ms. Haddad responded on official Jefferson County Public Schools letterhead, identifying herself as Chairman of the Board of Education, we must treat her response as final Board action.
In her July 19 response, Ms. Haddad advised Mr. Schmitt that he would be permitted to review the input forms. This response satisfied the notice requirement of KRS 61.880(1). Her statements to Mr. Schmitt, however, were somewhat at odds with this position. She expressed the view that the records were "confidential" and for her use only. Moreover, she apparently indicated that Mr. Schmitt would not be provided with copies of the records. These conflicting statements constitute a violation of the Open Records Act.
KRS 61.872(3) provides:
A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency.
(Emphasis added.) Additionally, KRS 61.874(1) guarantees the applicant "the right to make abstracts of all written public records and memoranda thereof, and to obtain copies of all written public records. " (Emphasis added.) While we do not believe that Ms. Haddad or the Board were required to send the records to Mr. Schmitt's office, since he resides in the county where the records are located, we believe that if the records are nonexempt "open records" Mr. Schmitt must be permitted to both inspect and obtain copies of them.
We do not mean to suggest that there are no exceptions to the Open Records Act authorizing nondisclosure of these records. However, Ms. Haddad did not cite any of the exceptions codified at KRS 61.878(1)(a) through (k) in her response to Mr. Schmitt's request. Although she verbally expressed the view that the records are "confidential" and for her use only, she nevertheless indicated that he could inspect them. Inasmuch as KRS 61.878(5) provides that none of the exceptions to the Open Records Act should be construed to "prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function, " we need not resolve this issue. Mr. Schmitt, as a member of the Board, is entitled to review the input forms "in the performance of a legitimate government function, " to wit, the selection of a school superintendent. KRS 160.290.
Ms. Haddad should promptly arrange for Mr. Schmitt to inspect and obtain copies of the input forms submitted by persons involved in the selection of the new superintendent of the Jefferson County Public Schools.
The Jefferson County Board of Education may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
Footnotes
Footnotes
1 See e.g. 93-ORD-22, holding that a public agency's promise of confidentiality can only be honored if it is consistent with the Open Records Act.
2 "Official custodian" of records is defined at KRS 61.870(3) as "the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control[.]"