Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Daviess County Public Schools violated KRS 61.880(1) in withholding cellular telephone records that were responsive to Randy Bivin's March 12, 2007, request for "proof that payment has been made to the District by employees for personal calls for the last quarter of 2006." 1 We find that 00-ORD-198 and 04-ORD-065, copies of which are attached hereto and incorporated by reference, are controlling on the issue of Mr. Bivin's right of access to records substantiating employee payment for personal cell phone use. We direct the parties' attention to the discussion at pages 2 through 4 of 00-ORD-198, and pages 4 through 7 of 04-ORD-065. The applicable board policy and procedure confirms that District employees are obligated to submit to the District, on a quarterly basis, a highlighted copy of their billing statements identifying any personal calls made/received, along with a check to cover the cost of personal usage. Clearly, these records are responsive to Mr. Bivin's request.
The District did not indicate, in its original response, on what statutory basis it denied Mr. Bivin access to these highlighted billing statements. Upon receipt of Mr. Bivin's open records appeal, this office issued notification to the District's superintendent and legal counsel, indicating that "[p]ursuant to 40 KAR 1:030 Section 2, the agency may respond to this appeal." The record on appeal is devoid of any supplemental agency response, suggesting that the District declined the opportunity to articulate its position. Inasmuch as KRS 61.880(2)(c) assigns the "burden of proof in sustaining the action" to the agency, and the District failed to meet this burden in its original denial by including "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," per KRS 61.880(1), or by availing itself of the opportunity to supplement and substantiate its position, per 40 KAR 1:030 Section 2, we conclude that the Daviess County Public School District violated the Open Records Act in withholding records responsive to Mr. Bivin's March 12 request.
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.
Randy A. Bivin4007 Fogle DriveOwensboro, KY 42301
Tom Shelton, Superintendent Daviess County Public SchoolsP.O. Box 21510Owensboro, KY 42304-1510
William L. Wilson, Jr.Wilson, Hutchinson & Poteat611 Frederica StreetOwensboro, KY 42301
Footnotes
Footnotes
1 Mr. Bivin acknowledges receipt (apparently for the second time) of Board Policy and Procedures relevant to business/personal cell phone use and a copy of "the most recent quarterly memo, dated 1/15/07" concerning the tax consequences of cell phone use. He objects that he did not receive records substantiating employee payment for personal calls.