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 Kentucky State University violated the Open Records Act in refusing to furnish State Journal reporters Susan Allen and Beth Crace with copies of personnel records they had previously inspected pursuant to a properly tendered open records request. For the reasons that follow, and upon the authorities cited, we conclude that KSU's response constituted a violation of the Act.
On April 30, 2001, Ms. Crace submitted a request to the University "for the complete personnel files for . . . Dr. Albert Assibey-Mensah and Dr. Andrew Smith." Shortly thereafter, KSU's open records coordinator, Melanie Halliday, notified Ms. Crace that she could inspect the requested records in Ms. Halliday's office on May 3. At the appointed date and time, Ms. Crace, accompanied by reporter Susan Allen, arrived at Ms. Halliday's office to inspect the records. Ms. Halliday advised them "to review the files and to mark the documents [they] wanted copied." In the course of their inspection, Ms. Crace and Ms. Allen marked for copying documents they identified as "a reprimand for one professor and student and faculty evaluations of those professors" along with "other letters" and "virtually all documents in those two files . . . ."
On May 9, Ms. Crace retrieved the copies she and Ms. Allen had requested, but discovered that the letter she had identified as "a reprimand, " and the faculty and student evaluations, had been omitted. The reporters were told that "they could not get copies of the documents until the two professors were told their records were being requested." In two letters dated May 8, 2001, copies of which were subsequently furnished to Ms. Crace, 1 KSU's attorney, William E. Johnson, advised Ms. Halliday that his review of the requested records confirmed that all of those records were subject to disclosure except:
1. 10 pages which appear to constitute Faculty Evaluation Comment Sections concerning Dr. Assibey-Mensah;
2. 30 pages headed Kentucky State University, Student Assessment of Instruction concerning Dr. Assibey-Mensah;
3. Faculty Evaluation Comment Section concerning Mr. Smith;
4. Memo from Dr. Shelton to Mr. Smith dated March 24, 1997 and the attached Division of Fine Arts Faculty Self Evaluation and Annual Report;
5. Letter from Mr. Smith to Dr. Shelton dated February 24, 1997, and
6. 16 pages headed Kentucky State University, Student Assessment of Instruction concerning Mr. Smith.
In support, Mr. Johnson cited KRS 61.878(1)(a), (i), and (j), the latter two exceptions misidentified as KRS 61.878(1)(h) and (i), and 94-ORD-108, an open records decision affirming the University of Kentucky's denial of a request for formal merit evaluation forms containing the final merit evaluation rating for two members of the faculty. This appeal followed.
It is the opinion of this office that KSU violated the Open Records Act in refusing to furnish The State Journal with copies of records that reporters Crace and Allen were permitted to inspect. As this office has noted on several occasions, "Refusal to supply a copy of a record, after inspection has been permitted, is an action inconsistent with KRS 61.874(1)." OAG 89-40, p. 3; OAG 92-30; 94-ORD-47; 94-ORD-104; 94-ORD-113; 98-ORD-8. KRS 61.874(1) provides:
Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all public records not exempted by the terms of KRS 61.878. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate. If the applicant desires copies of public records other than written records, the custodian of the records shall duplicate the records or permit the applicant to duplicate the records; however, the custodian shall ensure that such duplication will not damage or alter the original records.
In construing this provision, the Attorney General has observed:
It is abundantly clear from the language of this statute that one having inspected records is entitled to copies of them upon payment of a reasonable fee. [Footnote omitted.] That fee must not exceed the actual cost of copying, and may not include the cost of staff required. The right to copies of public records is thus correlative to the right to inspect those records. Accordingly, a public agency cannot on the one hand release public records for inspection by a requester, and on the other hand deny the requester the right to copy these records. See, e.g., OAG 89-27; OAG 89-43; OAG 89-66. The public records are either available for inspection and copying, or, under one or more of the exceptions codified at KRS 61.878(1)(a) through [(l)], they are not.
94-ORD-47, p. 3. On the basis of these authorities, we conclude that KSU violated KRS 61.874(1) by refusing to supply Ms. Crace with copies of the records she had already been permitted to inspect.
Although this office has, on rare occasions, determined that an agency is not estopped from denying a requester copies of records he or she has already inspected, such a determination is confined to those rare instances when "public records have been inadvertently released for inspection by non-custodial persons with access to [those] records . . . ." OAG 90-117, p. 5. These rare opinions were premised on the notion that "estoppel is not effected by inadvertent actions or mistakes, but only by previous actions by which the contrary has been admitted, implied, or determined." OAG 83-140, p. 2. In the appeal before us, KSU's records custodian affirmatively acted to permit Ms. Crace and Ms. Allen unfettered access to the records identified in Ms. Crace's request. Only after inspection was permitted did KSU undertake to examine the records disclosed to determine if any of them qualified for exclusion. This being the case, we must conclude that KSU is estopped from denying The State Journal copies of these records, notwithstanding their arguably exempt status.
In the interest of avoiding a recurrence of this incident, we encourage KSU to discharge its duty to review the records before the three day deadline for response has expired and inspection is permitted. While we recognize that the university's haste may have been prompted by its commitment to meet the three day deadline, accuracy should not be sacrificed for speed.
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.
Beth CraceThe State JournalP.O. Box 368Frankfort, KY 40601
Melanie Halliday202 Hume HallKentucky State University400 East Main StreetFrankfort, KY 40601
Harold GreeneOffice of Legal CounselKentucky State UniversityEast Main StreetFrankfort, KY 40601
William E. JohnsonJohnson, Judy, True & Guarnieri326 West Main StreetFrankfort, KY 40601
Footnotes
Footnotes
1 We note that the record before us is devoid of proof that KSU responded to Ms. Crace herself. Although the University apparently provided her with copies of Mr. Johnson's letters to Ms. Halliday, this did not necessarily represent full compliance with KRS 61.880(1), requiring written notification to "the person making the request . . . ."