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 Cumberland High School Site-Based Council violated the Open Records Act in its disposition of David H. Dixon's May 12, 2000, request for various records generated by, and relating to, the council. Mr. Dixon's request went unanswered, prompting him to initiate this appeal. For the reasons that follow, we find that although its response was procedurally deficient, the council subsequently agreed to permit Mr. Dixon access to all existing records that are responsive to his request thereby satisfying its obligations under the Open Records Act.
On May 12, Mr. Dixon submitted a request to Edward G. Clem, Principal of Cumberland High School, in which he asked to inspect:
* Meeting dates of all site-based council meetings from May of 1999 through present;
* The full agenda of each meeting;
* The full minutes of each meeting;
* Any and all handouts given to the site-based decision-making members;
* The site-based decision-making by-laws;
* All committee reports given to the site-based council.
Mr. Dixon indicates that Mr. Clem refused to accept service of the request. This appeal followed.
Upon receipt of this office's notification of the open records appeal, Mr. Clem responded that it was not his intent to refuse to comply with the requirements of the Act, but that he was "unclear on exactly what Mr. Dixon is wanting to see or have copies of." He acknowledged that at the time of Mr. Dixon's request, he "didn't have a clue what he was talking about." Nevertheless, in subsequent correspondence he agreed to release all records in the council's custody that are responsive to Mr. Dixon's request. On June 13, 2000, Mr. Clem confirmed that all responsive records had been transmitted to Mr. Dixon.
The Cumberland High School Site-Based Council violated the procedural requirements of the Open Records Act set forth at KRS 61.880(1) by failing to respond in writing, and within three business days, to Mr. Dixon's request. KRS 61.880(1) provides:
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 agency action.
In construing this provision, the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). As noted, it expressly requires a timely, written response directed to the person making the request. The council's failure to respond to Mr. Dixon in writing, and within three business days of receipt of the request, constituted a procedural violation of the Open Records Act. We urge the Cumberland High School Site-Based Council to review the cited provision to insure that future responses conform to the Open Records Act.
Turning to the substantive issue of records access, we find that the council subsequently discharged its duties under the Open Records Act by furnishing Mr. Dixon with copies of all existing records that were responsive to his request. In so doing, the council satisfied the mandatory disclosure requirements of the Act.
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.