Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This appeal originated in a request to inspect public records submitted by Mr. Robert Flashman, a professor at the University of Kentucky, to the University's custodian of records on June 8, 1994. That record is described as follows:
With respect to the additional rules and regulations of KRS 61.876(1) that are in addition to the notice described above, and which must exist by operation of the clause "but shall not be limited to" and which contain instructions to appropriate University employees concerning custodial duties to prevent damage or disorganization to records, I request a copy of those additional rules and regulations. I am specifically requesting those rules and regulations specifically adopted by the University to specifically subserve the "but shall not be limited" to [sic] requirement of KRS 61.876 (1) for rules and regulations aimed at custodial prevention of damage or disorganization to records.
In a response dated June 13, 1994, then custodian of records, Mr. Donald B. Clapp, denied Mr. Flashman's request, advising him that "[a] record as described does not exist."
Mr. Flashman constructs his appeal on the idea that KRS 61.876(1), and specifically the language "but shall not be limited to" found in that provision, when read in tandem with 200 KAR 1:020, by which the Department of Finance and Administration promulgates uniform rules and regulations governing public access to public records, obligates public agencies to adopt not one but two sets of KRS 61.876 rules and regulations, one "a posted, externally-directed notice describing responsibilities of requesters, " the second, "an internally-directed policy describing responsibilities of agency employees necessary to prevent records disorganization or damage . . . ." (Emphasis in original.) It is the second set of rules and regulations which Mr. Flashman sought, and of which Mr. Clapp denied the existence. It is Mr. Flashman's position that a 1976 memorandum from then University president, Otis Singletary, to vice-presidents, deans, and directors, pertaining to the yet to be enacted open records law and incorporating the Department of Finance's uniform rules, satisfies his request. In his view, Mr. Clapp's failure to produce this record constitutes a breach of his duty to ensure the maintenance, care, and keeping of University records, and thus a violation of the Open Records Law.
We do not find this argument persuasive. Mr. Flashman proceeds on the assumption that the words "but shall not be limited to," which appear at KRS 61.876(1), require the adoption of two sets of rules and regulations. Neither the courts nor this office have ever held public agencies to such a standard.
KRS 61.876 provides:
(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
(a) The principal office of the public agency and its regular office hours;
(b) The title and address of the official custodian of the public agency's records;
(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies;
(d) The procedures to be followed in requesting public records.
(2) Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public.
(3) The Finance and Administration Cabinet may promulgate uniform rules and regulations for all state administrative agencies.
The Attorney General has long recognized that this provision: is aimed at ensuring that each agency will educate the public on its particular policies and practices relative to open records. Simply stated, the rules and regulations contemplated by KRS 61.876 are a "how-to" for persons who wish to submit an open records request. . . . [A public agency] must adopt rules and regulations pertaining to its open records policy, or it may adapt the uniform rules and regulations promulgated by the Finance and Administration Cabinet to its particular needs. It must post these rules and regulations in a prominent location accessible to the public with the goal of broadly disseminating them . . . . The Open Records Law does not require more.
94-ORD-12, pp. 6-8. (Emphasis added.)
The phrase "but shall not be limited to," to which Mr. Flashman attaches such significance, indicates that the succeeding provision is intended to establish a minimum standard for agency compliance. A public agency complies with this provision if it adopts rules and regulations, limited to the items set forth at KRS 61.876(1)(a) through (d), or if it adopts more comprehensive rules and regulations, supplementing the list of items. Alternatively, a public agency complies with the provision if it adopts the rules and regulations promulgated by the Finance and Administration Cabinet or adapts those rules and regulations to its particular needs. If it fails to do any of these things, or if its rules and regulations do not conform to KRS 61.870 to 61.884, the rules and regulations promulgated by the Finance and Administration Cabinet are deemed to apply. OAG 81-269; OAG 84-300. It is not required, nor has it ever been required to adopt two sets of rules and regulations. Accordingly, Mr. Clapp's response that no record exists which satisfies Mr. Flashman's request was entirely consistent with the Open Records Law as interpreted by this office.
Mr. Flashman argues:
That 200 KAR 1:020 was promulgated for two stated purposes, one of which was openly stated as to provide general rules directed at state agency employees called "Official Custodian" and his staff assistant (and not at requesters) on actions required of them towards prevention of records damage and disorganization, and that 200 KAR 1:020.3(2) [sic] has never been rescinded pursuant to KRS 13A.120(4), shows that KRS 61.876(1) requires by its language "but shall not be limited to" these additional general rules in 200 KAR 1:020(3).2 [sic] directed at the Official Custodian and his staff assistant.
Contrary to Mr. Flashman's apparent belief, the uniform rules and regulations which appear at 200 KAR 1:020 do not represent an independent and legally binding interpretation of the Open Records Act, such as in a court decision or an unappealed Attorney General's open records decision. Nor do they impose additional legal obligations on public agencies relative to the adoption of rules and regulations governing public access to public records. They must be posted by "state administrative agencies" per 200 KAR 1:020 Section 6(1). They may be adopted and posted by other public agencies in lieu of adopting their own rules and regulations. They will be deemed adopted by public agencies which fail to adopt any rules and regulations, or if their rules and regulations do not conform to KRS 61.870 to 61.884. We find no support for Mr. Flashman's argument that the administrative regulation, when read in tandem with the "but shall not be limited to" language found in KRS 61.876(1), obligates public agencies to adopt two sets of rules and regulations. Mr. Flashman's argument obfuscates the obvious.
In closing, we strongly endorse the position taken by the Rhode Island District Court in an opinion cited by Mr. Flashman for the proposition that:
A FOIA request should not require the specificity and cunning of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government. A citizen should be able to submit a brief and simple request for the government to make full disclosure or openly assert its reason for non-disclosure.
Providence Journal Company v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.C.D. Rhode Island, 1978). Taking this position one step further, we believe that an open records appeal, like a request, should be both brief and simple. Inasmuch as neither his request nor appeal were models of brevity and simplicity, we urge Mr. Flashman to take these words to heart in preparing any forthcoming open records requests or appeals.
Mr. Flashman may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.