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 Harlan County Public Schools violated the Open Records Act in the disposition of David H. Dixon's April 24, 2001 request "to listen to the audiotape of the Harlan County Board meeting of April 17, 2001." Mr. Dixon received no written response to his request, prompting him to initiate this appeal. For the reasons that follow, we find that Harlan County Public Schools' disposition of his request was procedurally deficient and substantively incorrect, at least to the extent of its failure to make clear its willingness to honor that request.
In a response directed to this office following commencement of Mr. Dixon's appeal, Board Secretary Debi Greene defended HCPS's actions. She explained:
When [Mr. Dixon] brought the letter requesting his desire to listen to the tape I told him that I had always been told that this was not public record but for the secretary's use only to type the minutes. He said that he had an Attorney General's Opinion saying it was public record and that he would fax me a copy. I did not receive the fax and just assumed that he had changed his mind or was incorrect about what the opinion said.
In closing, Ms. Greene stated that at no time did she tell Mr. Dixon that he could not listen to the tape.
It is the opinion of this office that OAG 92-111, a copy of which is attached hereto and incorporated by reference, requires HCPS to permit Mr. Dixon to listen to the tape of its April 17 board meeting if the tape was purchased with HCPS funds and made at HCPS's direction. It was not incumbent on Mr. Dixon to produce a copy of this opinion as a condition to inspection of the tape. The burden of proof in an open records appeal rests with the public agency, and HCPS failed to meet this burden relative to the record withheld. KRS 61.880(2)(c).
Further, we find that HCPS violated KRS 61.880(1) by failing to issue a written response to Mr. Dixon's request within three business days of receipt. 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.
Nothing in this statute relieves an agency of its duties while it awaits submission of legal authority from the requester to support his right of access. As the 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).
KRS 61.880(1) requires a timely, written response directed to the person making the request. HCPS's failure to respond to Mr. Dixon in writing, and within three business days of receipt of his request constituted a procedural violation of the Open Records Act. We urge HCPS to review the cited provision to insure that future responses conform to 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 proceedings.
David H. DixonP.O. Box 484Cumberland, KY 40823
Tim SaylorSuperintendent, Harlan County Schools251 Ball Park RoadHarlan, KY 40831
Johnnie L. TurnerHarlan County School Board AttorneyP.O. Box 351Harlan, KY 40831
Debi GreeneHarlan County Public Schools251 Ball Park RoadHarlan, KY 40831-1753