Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; Thomas R. Emerson, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal by Keith K. Schillo in connection with his attempts to secure various categories of documents from the Lincoln County Board of Education.
In a letter to the Official Custodian of Records of the Lincoln County Board of Education, dated September 20, 1994, Mr. Schillo requested copies of five specifically described categories of documents. They involved two resumes, the position announcement for school superintendent, the list of applicants interviewed for the position of school superintendent, and the announcement of the recently created position of assistant principal at an elementary school.
James W. Williams, III, Esq., legal counsel for the Lincoln County Board of Education, replied to Mr. Schillo, in a letter dated September 22, 1994, and advised as follows:
Board personnel are not certain if the documents requested actually exist and have not had the opportunity to search for same. This is particularly true regarding item (4), a list of applicants, as these documents were received several years ago and it is not known if they were retained. Additionally, we do not know if Dr. George's resume is 10 pages or more, or less.
Regardless, those documents that do exist and which are in the possession of the Lincoln County Board of Education will be made available for your inspection. We would request that they be inspected by you prior to copying. They may be inspected at any time during the regular business hours of the Lincoln County Board of Education central office.
In his letter of appeal to this office, received September 28, 1994, Mr. Schillo maintained that Mr. Williams' response was inappropriate and that it subverted the intent of the Open Records Act. Mr. Schillo said the agency should have stated whether or not it had the records in its possession. He said the agency should have designated a time, place, and date for inspection of the documents, and the agency was required to furnish a detailed explanation concerning the cause of the delay in making the records available for inspection.
In response to Mr. Schillo's appeal, Mr. Williams, in a letter received October 3, 1994, said that the Board has not denied the request and that the records in the Board's custody may be inspected during the Board's regular business hours at its Central Office.
Two basic questions confront a public agency in any request for access to records. The first question to be answered is whether the document exists and is in possession or custody of the public agency. The second question is, if the document exists and is in possession or custody of the agency, must the record be made available for inspection or is it subject to one of the statutorily recognized exceptions to public inspection.
While the public agency indicated its willingness to comply with the spirit of the Open Records Act by making available for inspection "those documents that do exist and which are in the possession of the Lincoln County Board of Education," it was under an obligation to specifically state whether the requested documents actually exist. See OAG 91-101, copy enclosed, at page two. The public agency did not deny the request to inspect documents but, "If a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, copy enclosed, at page four, and 94-ORD-55, copy enclosed.
Mr. Schillo's letter of appeal makes several references to the applicability of KRS 61.872(5) relative to the duty of a public agency if a requested record is in active use, in storage, or not otherwise available. That statute would not apply here as the public agency's only transgression was a failure to specifically state whether certain records actually existed.
While the public agency honored the spirit of the Open Records Act by its willingness to make available whatever records that existed and were in its possession, it violated the Act to the extent that it failed to state whether the specific records requested actually existed.
Either Mr. Schillo or the Lincoln County Board of Education or both of them may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within thirty days from the date of this decision. The Attorney General shall be notified of any action filed in the circuit court pursuant to KRS 61.880(3) but that statute also provides that the Attorney General shall not be named as a party in any actions involving the Open Records Act.