Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Jefferson County Public Schools' responses to the Jefferson County Teachers Association's open records requests.
By letter dated August 7, 1996, Mr. Steve Neal, Executive Director, Jefferson County Teachers Association, requested to inspect "2 separate letters dated September 27, 1995 to the management of the Board (Jefferson County Board of Education) from Arthur Andersen, LLP, in which he noted certain matters involving internal control structure and its operation. These letters were noted in the auditors report for the year ended June 30, 1995."
By letter dated August 8, 1996, Mr. Neal requested to inspect any response "from the management of the Board (Jefferson County Board of Education) to the 2 letters dated September 27, 1995 from Arthur Andersen, LLP, in which he noted certain matters involving internal control structure and its operation. The response would be to the auditors report for the year ended June 30, 1995."
By letter dated August 13, 1996, Ms. Lauren E. Roberts, Public Information Officer, Jefferson County Public Schools, responded to Mr. Neal's requests, stating in relevant part:
Please be advised that although Arthur Andersen, LLP, indicated that letters to the management of the Board of Education were contained within the auditor's report, I am advised by our financial officers that the report was in error. There were no final letters to the management of the Board in this particular report; therefore, there was no response from the management of the Board.
In his letter of appeal, dated August 16, 1996, Mr. Neal states that in follow-up telephone conversations with the Board of Education, he explained that he was requesting to inspect separate letters and reports and not letters and reports contained with the actual auditor's report. He states that the School Board continues to maintain it has no such reports and letters.
By letter dated August 22, 1996, we received additional documentation from Mr. Neal in which he enclosed a letter (apparently provided to him by Ms. Roberts), dated August 16, 1996, from Mr. Kent W. Blake, of Arthur Andersen, LLP, to Mr. Bernard J. Schrembs, Director of Accounting, Jefferson County Schools. In this letter, Mr. Blake states:
We understand that you have received inquiries regarding our Independent Auditors' Report on the Internal Control Structure based on an audit of the General Purpose Financial Statements performed in accordance with Government Auditing Standards for the year ending
June 30, 1995. Specifically cited was the eighth paragraph of said report which made reference to a letter involving the internal control structure and its operation that we provided to management.
As you recall, a management letter in DRAFT form was issued on December 14, 1995. Such letter would have been dated September 27, 1995, concurrent with the date on our audit report, when issued in final form. Per your request, a decision was made not to issue a final formal letter. As a result, no such letter was ever finalized.
The eighth paragraph of the auditors' report referred to by Mr. Blake in his letter to Mr. Schrembs, states: "However, we noted certain matters involving the internal control structure and its operation that we have reported to the management of the Board in a separate letter dated September 27, 1995."
By letter dated August 27, 1996, Ms. Roberts, as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, provided this office with a written response, on behalf of the School Board, to the issues raised in this appeal. In her response, Ms. Roberts states in pertinent part:
Attached you will find Mr. Neal's requests and our responses. As we have indicated to him, there were no letters contained within or separate from the auditor's report to the management of the Board of Education; and, therefore, there were no responses to such. (Emphasis in the original.)
In the attachments to her response, Ms. Roberts included the August 16, 1996 letter from Mr. Blake to Mr. Schrembs referred to above.
In this appeal, we are asked to determine whether the School Board's responses were consistent with the Open Records Act. For the reasons which follow, we conclude that the responses were consistent in part and inconsistent in part with the Act.
This office has consistently recognized that a public agency cannot afford a requester access to records which it does not have, or which do not exist. In its responses, the School Board states that no final letters from the auditors to the management of the Board exist, either contained in the report or separately. To the extent the requested documents do not exist, the School Board's responses were consistent with the Act.
However, from the documentation provided this office by the parties to this appeal, it appears that the School Board may have a draft of a letter from the auditors to the management of the Board, as indicated by the letter from Mr. Blake to Mr. Schrembs. If such a document exists, the School Board should affirmatively so advise.
KRS 61.880(1) requires that an agency advise the requesting party as to the existence of the documents requested. If the documents exist and inspection is denied, the agency should list each document which it will not permit the requesting party to inspect and cite the specific exception authorizing the withholding of the record and a brief explanation of how the cited exception applies to the records withheld.
The instant open records request was sufficiently specific to inform the agency as to the record Mr. Neal was seeking. This is evidenced by the fact that the Board provided a copy of the letter from Mr. Blake to Mr. Schrembs which identified the draft document. If the draft letter exists, the School Board's responses were insufficient under KRS 61.880(1) because they did not affirmatively advise the requesting party as to the existence of the letter.
Moreover, although it may not be a final formal letter, it is still a public record subject to the provisions of KRS 61.880(1). The Board, in failing to provide a statement of the specific exception which authorizes the withholding of the record and a brief explanation how that exception applied to the record withheld, was in further violation of the requirements of KRS 61.880(1).
We do not mean to suggest that the School Board could not have asserted that the draft letter was properly exempt from disclosure under one of the exceptions set forth in KRS 61.878. However, it is not the function of the Attorney General to make the case for the public agency or speculate whether a particular record exists or may be exempt from disclosure under the Open Records Act. This office's primary function relative to an open records request and a denial by a public agency is to review the denial and determine whether the public agency acted consistently with the provisions of the Open Records Act. OAG 86-32.
In the instant case, the Board neither affirmatively informed the requester as to the existence of the draft letter nor cited a specific exception which would allow the withholding of the document from inspection. Thus, the Board failed to meet its statutory burden of proof of establishing that it properly withheld a public record from inspection under the Open Records Act. KRS 61.880(2)(c). Accordingly, the record in question, if it exists, should be made available for Mr. Neal's inspection.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.