Request By:
Thomas Stone
104 Sunset Court
Ashland, KY 41101Ronnie Back
Superintendent
Russell Independent Schools
409 Bellfont Street
Russell, KY 41101James W. Lyon, Jr.
Lyon & Kendall
P. O. Box 675
Greenup, KY 41144
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 Thomas Stone's March 15, 2002 request to inspect and copy "all records that refer to [him] or mention [his] name . . . ." 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 Mr. Stone's position that the school system's response was untimely or that its Central Office does not qualify as a suitable facility for inspection. However, given the express language of the school system's response to Mr. Stone's request, and its course of conduct subsequent thereto, we find that the Russell Independent Schools subverted the intent of the Act by requiring Mr. Stone to make an appointment to inspect the records identified in his request thereby placing unreasonable restrictions on his right of access. 1
In his March 20 response to Mr. Stone's request, Superintendent Ronnie H. Back indicated that he had assembled all records "that fall [] under this description with the exception of exemptions that are defined by KRS 61.878." In closing, he advised Mr. Stone:
Please call or write me to set an appointment so that you may view and/or copy those you wish.
By telephone, Superintendent Back and Mr. Stone subsequently agreed that Mr. Stone would inspect the assembled records at 9:00 a.m. on March 25. 2 Mr. Stone did so on March 25, bringing with him a tape recorder. Mr. Stone furnished this office with a copy of the tape of his and Superintendent Back's meeting to substantiate his position that he was assaulted by the Superintendent. 3 The meeting having been brought to an unsuccessful conclusion, Mr. Stone initiated this appeal on May 14, 2002.
In a supplemental response directed to this office following commencement of the appeal, Russell Independent Schools Special Counsel James W. Lyon, Jr., relied on 02-ORD-094, an earlier appeal involving Vickie Stone and the school system, which addressed similar issues. While we agree that much of the reasoning set forth in 02-ORD-094 applies with equal force to Mr. Stone's appeal, we do not believe it is entirely determinative of the issues. The facts giving rise to the two appeals are separate and distinct, and the law must be applied to the specific facts presented.
Timeliness of response
At pages two and three of 02-ORD-094, the Attorney General analyzed the duties of the Russell Independent Schools in responding to open records requests. There, we concluded that the school system's April 4 response, postmarked April 5, to Ms. Stone's April 1 request could not be deemed to have subverted the intent of the Open Records Act, or otherwise violated KRS 61.880(1), because of a one day discrepancy in the letter's date and its postmarked date. A copy of that decision is attached hereto and its reasoning incorporated by reference.
Mr. Stone submitted a letter to the school system on April 1 in which he renewed not one, but two earlier requests. 4 The school system responded to his request, through Mr. Lyons, in a letter dated April 4 and postmarked April 5. Mr. Stone maintains that the result in this appeal should not mirror the result in 02-ORD-094 because "the response was never postmarked by the USPS." He observes:
When a letter is run through the Pitney Bowes machine that belongs to Lyon and Kendall no other marks are necessary (except the zip bar code). The earliest that Mr. Lyon could have mailed the letter was April 5th. I believe that he mailed it late to avoid an appeal based on me not being able to get in the Central Office until the next week because the office was open .
(Emphasis in original.)
Again, we are not prepared to say that the Russell Independent Schools subverted the intent of the Open Records Act, or violated KRS 61.880(1), because of a one day discrepancy in the letter's date and its postmarked date. Nor are we willing to speculate on the reasons for the discrepancy. We will instead reiterate that the school system must make every reasonable effort to insure that its open records responses are prepared and mailed on or before the third business day calculated on the basis of the rules set forth in 02-ORD-094.
Suitable facilities
At pages five through seven of 02-ORD-094, the Attorney General examined the Russell Independent Schools' duty under KRS 61.872(1) to provide suitable facilities for the exercise of the right of inspection. That analysis is again incorporated by reference into this decision. Mr. Stone maintains that the events of March 25, which he documents with a tape recording, undermine the school system's position that its Central Office is a suitable facility within the meaning of KRS 61.872(1). We do not agree.
The tape reflects that the conference room at the Central Office was set aside for Mr. Stone to conduct his inspection and that responsive records had been assembled and placed in that room. The tape further reflects that Superintendent Back was present during the inspection and was in the process of explaining which records were responsive to each of Mr. Stone's request when a dispute arose over Mr. Stone's use of a tape recorder. It is for the courts, and not this office, to determine if a violation of the criminal laws relating to assault occurred in the course of this meeting. Our authority in an open records appeal is restricted to determining if the provisions of the Act were violated, in this case KRS 61.872(1), by virtue of the school system's failure to provide suitable facilities for exercise of the right of inspection. We find nothing in the record to support Mr. Stone's position that the facilities provided were unsuitable. To say anything more would be tantamount to invading the prerogative of the courts.
Appointment to inspect
At pages four and five of 02-ORD-094, the Attorney General addressed the question of whether the Russell Independent Schools violated KRS 61.872(3)(a) by requiring Ms. Stone to make an appointment to inspect the records identified in her request. That portion of the decision is also incorporated by reference here. Based on the precatory language that appeared in the school system's response notifying her that the records were available for inspection, we concluded that she was not required to make an appointment. Therefore, we determined that the school system did not violate KRS 61.872(3)(a).
The facts of the appeal before us do not mirror the facts in 02-ORD-094. Here, the school system employed mandatory language, instructing Mr. Stone to "call or write . . . to set an appointment so that [he might] view and/or copy" the records. Notwithstanding the school system's earlier assertion that it would permit access to nonexempt public records "during regular business hours of the school board office," it is apparent that its March 20 response required Mr. Stone to make an appointment. In so doing, the school system improperly restricted the hours of access to public records and thereby violated KRS 61.872(3)(a). The Russell Independent Schools must adhere to a uniform and consistent policy of permitting all records applicants to conduct on-site inspections of its records during regular office hours with or without an appointment unless or until a court of competent jurisdiction directs otherwise.
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.
Footnotes
Footnotes
1 Although the evidence before us suggests that records access issues were raised in the course of these events, Mr. Stone does not challenge the school system's refusal to furnish him with records that in its view fell within "the exemptions that are defined by KRS 61.878" (later identified as records that "no longer exist or are exempt under KRS 61.878(2)(i)[sic])."
2 A dispute concerning an open records request that Mr. Stone submitted after his March 15 request apparently resulted in this delay in inspection.
3 As noted in 02-ORD-094, the school system disputes Mr. Stone's allegations that he was assaulted while inspecting the records identified in his request.
4 The first renewed request related to his March 22 request for records relating to P2 and P3 program materials, and the second related to his March 15 request for all records that referred to him.