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 Russell Independent Schools' disposition of Vickie Stone's April 1, 2002 records request constituted a subversion of the intent of the Open Records Act short of denial of inspection within the meaning of KRS 61.880(4). For the reasons that follow, we find that the record on appeal does not support Ms. Stone's position that the school system's response was untimely, that the school system required her to submit a written request for an appointment to inspect the records identified in her request, or that the school system's Central Office does not qualify as a suitable facility for inspection. Accordingly, we conclude that the Russell Independent Schools did not subvert the intent of the Act in the disposition of Ms. Stone's request.
On April 1, 2002, Ms. Stone faxed an open records request to the Central Office in which she indicated she "would like all records that refer to me or mention my name made available for inspection and copying." In her request, Ms. Stone asked that in light of allegations leveled against Superintendent Ronnie Back by her husband, arrangements be made for facilities other than the Central Office in which she might exercise her right of inspection. The fax confirmation sheet Ms. Stone submitted as an exhibit reflects that her request was transmitted at 3:21 p.m.
In a letter dated April 4, 2002, and postmarked April 5, 2002, the school system's attorney, James W. Lyon, Jr., responded to Ms. Stone's request. He advised:
Mr. Back . . . has the records that you have requested, and they are ready for your inspection at the School Board Office. You may contact Mr. Back on or after April 8, 2002, in writing, to set a date and time for inspection.
The school system maintains that the environment at the School Board Office is both safe and suitable for you and Mr. Stone to view records. However, in light of Mr. Stone's . . . claim . . ., you may be assured that at least one witness will be present with you at all times during any visit you make to the School Board Office.
On appeal, Ms. Stone questions whether the school system's response was issued in a timely manner, whether she can be required to mail a request for an appointment to inspect public records, and whether the school system's Central Office qualifies as suitable facilities for inspection within the meaning of KRS 61.872(1).
Timeliness of response
KRS 61.880(1) establishes procedural guidelines for agency response to an open records request, including a three day deadline for that response. The statute thus provides, in relevant part:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturday, 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.
In construing this provision, the Attorney General has repeatedly recognized that "[t]he computation of time statute, KRS 446.030(1)(a), [is] applicable to time requirements of the Open Records Act. " 96-ORD-207, p. 2; see also 99-ORD-188, 01-ORD-3, and 02-ORD-81. That statute provides:
In computing any period of time prescribed or allowed by order of court, or by any applicable statute, the date of the act, event or default after which the designated period of time begins to run is not to be included.
Thus, the three day deadline for agency response to an open records request excludes the day the request was received.
Ms. Stone states that she faxed her request on April 1 and submits the fax confirmation sheet reflecting that it was successfully transmitted at 3:21 p.m. that day. This is the "day of the act" after which the three day period of time begins to run. Thus, Monday, April 1, was excluded from the three day computation. Tuesday, April 2, was the first of the three days. Wednesday, April 3, was the second of the three days. Thursday, April 4, was the third of the three days and the day the school system, represented in this matter by Mr. Lyon, prepared the response. Although the record is by no means clear, the school system's response may have been placed in the mail on April 4, and retrieved and postmarked by postal authorities on April 5, or may have been placed in the mail on April 5, and retrieved and postmarked by postal authorities that same day.
We are not equipped to resolve this particular issue and will not expend additional effort in attempting to do so. Under the worse case scenario, the school system was dilatory in failing to insure that the mailbox into which the response was placed had at least one more pick-up time before 12:01 on April 5. Absent proof of intent to delay delivery, which is most unlikely under the circumstances, we are not prepared to say that the system's failure to do so constituted a subversion of the intent of the Act. Nevertheless, we encourage the school system to make every reasonable effort to insure that its open records responses are mailed and postmarked on the third business day calculated on the basis of the rules set forth above. Given the vagaries of the mail, we recognize that the school system has no control over when the response is received by the requester.
Appointment to inspect
Ms. Stone next objects to the school system's attempt to require her to mail a request for an appointment to inspect public records. As evidence, she cites the following statement from Mr. Lyon's April 4 letter:
You may contact Mr. Back on or after Apr. 18, 2002, in writing, to set a date and time for inspection.
Mr. Lyon acknowledges that "it was suggested that she could make an appointment to inspect records," but advises that he does not "know that she was ever required to make an appointment. " Further, he acknowledges the school system's duty to afford her access to nonexempt public records "during regular business hours of the school board office." Assuming the school system implements this recognized duty in Ms. Stone's and all other cases, we are again not prepared to say that its response subverted the intent of the Open Records Act.
KRS 61.872(3)(a) mandates public access to agency records "during the regular office hours of the public agency. " In construing this provision, the Attorney General has consistently recognized 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. OAG 80-641, p. 3; OAG 82-396; OAG 87-54; 93-ORD-39; 96-ORD-54; 98-ORD-69. In the latter decision, we expressly held that an agency:
cannot restrict the hours of access to public records in the course of the business day, cannot condition exercise of the right to inspect those records on the availability of an employee or employees to oversee inspection, and cannot avoid [its] statutory duty based on the requester's identity or purpose, or the need "to minimize the commitment of time and burden on the public agency. "
98-ORD-69, p. 6. The only recognized exception to this general rule comes into play when the agency has a very small complement of employees or restricted and irregular office hours. See, e.g., 96-ORD-54. Under these circumstances, "the Open Records Act contemplates that the public agency and the requester mutually agree to a time and place convenient to both for review of the public records. " Id. at 5.
As in 96-ORD-54, Ms. Stone was entitled to immediately inspect the requested records during the school system's regular office hours once Mr. Lyon notified her in writing that the records were available for review. In the interest of absolute clarity, we reiterate that she cannot be required to make an appointment to inspect the records, inasmuch as such a requirement could be interpreted as an illegal restriction on access, 1 but may make such an appointment as a reasonable accommodation to the school system.
The record before us does not support Ms. Stone's position that she was required to make an appointment. Mr. Lyon employed the precatory language, "may," rather than the mandatory language, "must," in his April 4 response to her request. Although Ms. Stone may have construed his letter as a demand, based on the language employed it was not a demand but was instead a suggestion. Mr. Lyon has expressly acknowledged the school system's duty to permit a records applicant to conduct on-site inspection of its records during regular office hours with or without an appointment. Given these facts, we conclude that his April 4 response to her request did not constitute a subversion of the intent of the Act.
Suitable facilities
The final issue Ms. Stone raises on appeal is whether the Russell Independent School's Central Office qualifies as a suitable facility for inspection of the school system's records. Based on the treatment her husband received when he attempted to inspect records at this site, 2 Superintendent Back's conduct during her earlier visits to the Central Office 3 and a relationship with him that she characterizes as "extremely hostile," and Mr. Lyon's statement that at least one witness will be present with her at all times while she is in the Central Office, Ms. Stone maintains that "some other place and person must be found to allow proper inspection of records." In support, she cites 93-ORD-39.
In 93-ORD-39, this office analyzed KRS 61.872(1), requiring public agencies to make suitable facilities available for exercise of the right of inspection, and KRS 61.876(1), requiring public agencies to adopt rules and regulations aimed at providing "full access to public records . . .," and "assistance and information upon request . . . ." There we concluded that a city manager's abusive conduct toward a requester subverted the intent of the Open Records Act by creating an atmosphere so hostile that it precluded the requester from effectively inspecting the records. We observed:
Underlying each of these provisions is the recognition "that free and open examination of public records is in the public interest . . . ." KRS 61.871. This office has consistently recognized that public agencies must work in a spirit of cooperation with individuals wishing to inspect their records. See, e.g., OAG 91-58. This necessarily includes creating an environment which is conducive to effective inspection.
The Random House Dictionary defines the term "suitable" as "correct or appropriate for a particular purpose or occasion." While a requester cannot expect the agency to provide facilities offering the enforced silence of a library, he may certainly expect that those facilities will afford him adequate opportunity to inspect the records without interruption, and without harassment.
93-ORD-39, p. 3. In 98-ORD-69, we took this analysis one step further and concluded that although "the requester cannot expect the agency to provide facilities which are large enough to accommodate an army of advisors and analysts, he may certainly expect that the facilities will comfortably accommodate the individuals working in concert or entirely independently." 98-ORD-39, p. 6. We concluded that "[a]s in all matters not specifically addressed by the Open Records Act, we apply a reasonableness standard." Id.
Nevertheless, this office has approved the practice of assigning an employee to oversee inspection of public records as long as the agency does not condition exercise of the right of inspection on the availability of the employee. 93-ORD-48; 99-ORD-44. In 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.
93-ORD-48, p. 2.
The Russell Independent School System maintains that the environment at its Central Office "is both safe and suitable for [Ms. Stone] to view records." Mr. Lyon advises us that this "is the only office maintained for school administrative personnel, such as the Superintendent." Ms. Stone presents no proof that she has been subjected to abusive conduct. Speculation as to what might occur in the future is not sufficient to support a claim of subversion of the intent of the law. We therefore conclude that the school system has properly designated its Central Office as a suitable facility for inspection of records, and its decision to do so does not constitute a subversion of the intent 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 proceedings.
Vickie Stone104 Sunset CourtAshland, KY 41101
Ronnie BackSuperintendentRussell Independent Schools409 Bellfont StreetRussell, KY 41101
James W. Lyon, Jr.Lyon & KendallP.O. Box 675Greenup, KY 41144
Footnotes
Footnotes
1 No claim is made that the school system has only one or two employees or that it operates during restricted or irregular hours.
2 The school system disputes Mr. Stone's allegations that he was mistreated while inspecting records.
3 On this point, Ms. Stone observes:
Mr. Back was constantly present, even when it was not necessary. He kept up a constant chatty conversation even when my responses were obvious that I did not want to engage in conversation.