Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Owsley County Board of Education violated the Open Records Act in responding to Robert J. Shuman's February 15, 1999, request for various records relating to the Owsley County school system. For the reasons that follow, we find that the Board's response was partially violative of the Act. On behalf of the Owsley County Board of Education, the Board's attorney, Kendall Robinson, responded to Mr. Shuman's request on February 15, 1999.
Mr. Shuman's requests, and the Board's responses, are summarized below:
Request one: records of any night school programs that utilize the Owsley County School System buildings for the years 1995-1999
Request two: pay records of any full or part time staff who teach any extra curricular classes on Owsley County school property for the years 1996-1999
Request three: records for all individual vehicles in the control of the Owsley County School System for the years 1996-1999
Request four: records of operating costs of all vehicles in control of the Owsley County school system for the years 1996-1999
Request five: records that indicate the amount of tobacco base controlled by the Owsley County school system
Request six: records of checks paid to legal firms used by the school system for the years 1996 to 1999
Request seven: records of check or checks received by the school system for the sale at auction of the school system woodworking machines in 1996;
Request eight: records (cashed checks) that indicate what firms supply fuel for the Owsley County school system vehicles for the years 1996 to 1999
Mr. Robinson noted that all nonexempt records which Mr. Shuman requested would be available for inspection at the office of the Owsley County Board of Education on March 15, 1999, between the hours of 8:00 a.m. and 11:00 a.m. He explained:
This is the earliest possible date that can be scheduled for your review, due to the fact the school board offices will be closed on several days between now and March 15 or have prior commitments, and in addition, you have again requested a substantial amount of records, which will necessitate going through a lot of records to locate the ones you have requested. . . .
He reminded Mr. Shuman that Mr. Shuman was currently under a restraining order prohibiting him from appearing at the Board's offices, but that he would "be permitted to come on the date scheduled to view the records."
In his letter of appeal to this office, Mr. Shuman questioned the Board's inability, or failure, to produce records relating to individual vehicles (including titles, bills of sale, and operational/fuel costs), and the sale of school woodworking machines in 1996. He also questioned the reasonableness of its decision to postpone his inspection of the records for thirty days, and the time restrictions for exercise of right of inspection (three hours) imposed on him. Finally, he questioned the Board's open records policies generally, and as they relate to imposition of fees, delivery of copies, and appointment of an official custodian of records. In closing, he noted that he has determined, through the courts, that no restraining order has been issued against him.
In a supplemental letter to this office dated February 25, Mr. Robinson defended the Board's position. With respect to the issue of apparently nonexistent records, he reiterated that the Board has no obligation to create records to satisfy an open records request under existing law. With respect to the issue of timely access, he explained:
The time established for [Mr. Shuman's] inspection was twenty-seven [not thirty] days, however, eight days of that time were weekends and the central office [would be] closed three days on March 10, 11, and 12 and the Board already had previous commitments for several days for the week and a half immediately following his request.
Specifically, the Board was involved in writing grant proposals "which had a deadline. "
Mr. Robinson emphasized that "arrangements have to be made for a law enforcement officer to be present as well as one other staff to remain in the room and observe and make sure there is no destruction of the records." He noted that although Mr. Shuman was afforded an opportunity to spend the entire day reviewing records in the Board's offices on February 10 and 11, he spent only one hour. Mr. Robinson acknowledged his error in asserting, in a prior open records dispute involving these parties, that a restraining order had been issued against Mr. Shuman.
It is the opinion of this office that the Owsley County Board of Education's response to Mr. Shuman's February 15 request was partially inconsistent with the Open Records Act. Although we concur with the Board in its view that it has no obligation to create records which otherwise do not exist in order to satisfy Mr. Shuman's request, we find that the Board failed to afford Mr. Shuman timely access to the records identified in his request and that it imposed unreasonable restrictions on his right to inspect those records. To the extent that our decision in 99-ORD-26 is inconsistent with this position, it is hereby modified, the record before us having been corrected to reflect that no restraining order has been issued against Mr. Shuman.
In 99-ORD-26, we addressed many of the same issues which are presented in this appeal. There, we concluded that the nonexistence of certain records relating to the night school program and the sale of woodworking machines in 1996 raised records management issues which were capable of resolution by the Department for Libraries and Archives, but not by this office in an open records appeal. Assuming the truthfulness of the Board's assertion that no such records exist, we affirmed its denial on this basis. We also concluded that although the Board extended the deadline for inspection by twenty days, based on the volume of records requested and the difficulty in locating and retrieving them, it nevertheless afforded Mr. Shuman timely access to the records identified in his request. Finally, we concluded that although the Open Records Act prohibits the imposition of unreasonable restrictions on the exercise of the right of inspection, the rules governing Mr. Shuman's right of on-site inspection were superseded by the terms of the restraining order which we were advised had been issued against him.
In the appeal before us, the Board has reaffirmed its denial of Mr. Shuman's request for access to records relating to night school programs and the sale of woodworking machines on the basis of the records' nonexistence, and now also denies the existence of records relating to payments to full or part time staff who teach extracurricular classes and records relating to the purchase and operation (fuel expenses) of individual vehicles owned by the school system. The Board has extended the deadline for inspection of an abbreviated list of records to twenty-seven days, and restricted Mr. Shuman's hours of on-site access to the hours of 8:00 a.m. to 11:00 a.m. to insure the presence of a Board employee and a law enforcement officer to monitor inspection. We cannot approve these practices.
Nonexistent records
As we noted in 99-ORD-26, a public agency cannot honor a request for records which do not exist or are not in its custody. In such instances, the agency discharges its duty under the Open Records Act by advising the requester that no such records exist. We also recognized, in 99-ORD-26, that the issue of an agency's failure to adequately manage or maintain public records cannot be resolved in an open records appeal, but may be presented to the Department for Libraries and Archives for appropriate action. Here, as in 99-ORD-26, we conclude that the Owsley County Board of Education did not violate the Act by failing to furnish Mr. Shuman with records relating to the night school program, the auction of woodworking machines, payments to full or part-time office staff who teach extracurricular classes, and records relating to the purchase and operation of individual vehicles owned by the school system, because those records do not exist or are not in its custody.
Nevertheless, based on the language found in KRS 61.8715 in which the General Assembly recognized "an essential relationship between the intent of [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records . . .," we have referred this matter to the Department for Libraries and Archives, Public Records Division, for a determination whether the Owsley County Board of Education violated the provisions of Chapter 171, and in particular KRS 171.640, relative to its duty to manage and preserve records "containing adequate and proper documentation of the organizational functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish information necessary to protect the legal and financial rights of the government and of persons directly affected by the agency's activities." Given the apparent paucity of records maintained by the Board, we believe that additional inquiries are warranted.
Timely access
In 99-ORD-26, we recognized that the twenty day extension of the deadline for inspection was not unreasonable since Mr. Shuman had requested voluminous records for a period of several years. At page 6 of that decision, we reasoned:
We believe that a determination of what is a "reasonable time" for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records. A twenty day extension of the deadline for inspection clearly represents the outermost acceptable delay. Certainly, any greater delay would violate the principle of timely access to public records .
(Emphasis added.) In the appeal before us, the Board has extended the deadline for inspection of an abbreviated list of records an additional twenty-seven days, noting that eight of these days are week-ends and that its offices will be officially closed on three other days during the twenty-seven day period.
We conclude that on the facts before us the Board has unreasonably postponed Mr. Shuman's right of access to public records. Disregarding Saturdays and Sundays, which were also factored into the twenty day extension in 99-ORD-26, the Board has accounted for only three days of the twenty-seven when the records would normally be available, but are not. This leaves a twenty-four day extension of the normal deadline for records inspection. Our review of Mr. Shuman's February 15 request demonstrates that he has requested fewer records on this occasion than in the past (eight categories of records as opposed to nineteen). Given these facts, we must conclude that the Owsley County Board of Education's actions violate the principle of timely access to public records. We urge the Board to review the relevant provisions of the Open Records Act (KRS 61.872(5) and 61.880 (1)), and to concentrate its efforts on complying with the three day statutory deadline for records inspection.
Unreasonable restrictions on the right of inspection
In 99-ORD-26, this office commented that, as a general rule, "unreasonable restrictions on inspection may not be imposed." 99-ORD-26, p. 7, citing OAG 89-81, p. 4. In support, we cited KRS 61.872(3)(a), recognizing the individual's right to inspect public records "during the regular office hours of the public agency, " and OAG 80-641, page 3, recognizing that "any attempt by a public agency to limit the period of time within which a requester may inspect public records places 'an unreasonable and illegal restriction' upon the requester's right of access. " Nevertheless, on the facts presented by the Owsley County Board of Education in that appeal, we held that "the rules governing the requester's right of on-site inspection are superseded by the terms of the restraining order. " 99-ORD-26, p. 7.
In the appeal before us, the Board acknowledges that no restraining order was issued against Mr. Shuman to prevent him from entering the Board's offices. Accordingly, we find that the Board cannot restrict his right of on-site access to three hours on a single day. Such a restriction is "unreasonable and illegal." See OAG 80-641, p. 3; OAG 82-396; OAG 87-54; 93-ORD-39; 98-ORD-69. The fact that the Board has elected to assign an employee and a law enforcement officer to monitor Mr. Shuman's inspection of the records does not alter this conclusion. Although it may properly do so, under authority of KRS 61.876(1), the Board cannot condition exercise of the right of inspection on the availability of an employee or employees to oversee the inspection. Thus, at page 2 of 93-ORD-48, we observed:
KRS 61.876(1) requires a public agency to 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, [and] to prevent excessive disruption of its essential functions . . . ." While this provision does not expressly permit a public agency to appoint an employee to oversee the review of its records, we believe that such a policy is consistent with the agency's grant of authority to protect its records and prevent excessive disruption of its essential functions. Nevertheless, we do not believe that the policy can be used to limit the number of hours during the regular work day when a requester may inspect records. Nor do we believe that the employee designated to oversee the requester's review may interfere or disrupt his or her inspection of the records.
Absent a restraining order the terms of which supersede these rules, the Owsley County Board of Education is bound to observe them, and thus to make its nonexempt public records available for inspection during regular office hours.
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.