Request By:
Stephanie MatherlyDiana Thomas
Open Records Coordinator
Spencer County Public Schools
207 West Main Street
Taylorsville, KY 40071R. Larry Holt, Superintendent
Spencer County Public Schools
207 West Main Street
Taylorsville, KY 40071Robert L. Chenoweth
Chenoweth Law Office
121 Bridge Street
Frankfort, KY 40601S. Shea Luna
Chenoweth Law Office
121 Bridge Street
Frankfort, KY 40601
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Spencer County Schools (School District) violated the Open Records Act in its disposition of Stephanie Matherly's request, hand-delivered on May 3, 2007, for a copy of the results of a survey sent to the parents of Bear Care students in the School District. For the reason that follows, we conclude that with the exception of a procedural violation, the School District's response did not violate the Act.
By letter dated May 7, 2007, Diane Thomas, Personnel Program Manager, responded to the request, advising Ms. Matherly that her letter provided a sufficient description of the information she was seeking and asked that she complete and return the School Districts Open Records Request Form.
By letter dated May 8, 2007, Ms. Thomas advised Ms. Matherly that her May 3, 2007, request had been received and the information she requested would be provided by May 25, 2007.
By letter dated May 10, 2007, Ms. Matherly initiated the instant appeal stating that the School District did not explain the length of time in the delay of providing the results of the survey and required her to fill out their request form, even though her request letter was sufficient.
On May 11, 2007, Robert L. Chenoweth, legal counsel for the School District, responded to Ms. Matherly's request submitted on the School District's request form, advising her that, as the results of the survey had not yet been compiled, there existed no public record to supply her. He further explained that the delay in providing access to the survey results was due to health issues of the individual materially involved with creating the Bear Care survey results and that it was anticipated such would be available during usual business hours at the School District's central offices at least by May 25, 2007.
After receipt of notification of the appeal, S. Shea Luna, also counsel for the School District, provided this office with a response to the issues raised in the appeal. In her response, Ms. Luna reiterated that because the results of the survey had not been compiled into a document reflecting such, the School District continued to be unable to provide Ms. Matherly with access to a public record. She further advised that, pursuant to KRS 61.876, the School District had adopted a policy that all requests under the Open Records Act shall be made on a specified form and that her May 3, 2007, letter did not constitute a valid request because it was not submitted on the required form.
We find the School District's response, at the time of Ms. Mather's request, that a record documenting the results of the survey had not yet been completed, and was therefore not available for inspection, was proper and did not constitute a violation of the Open Records Act. In 93-ORD-55, p. 1, this office stated:
This Office has consistently recognized that the Open Records Act regulates access to public records, and not records management, or, in this instance, the purported failure of a public agency to generate a given record in a timely fashion. Our opinion must be limited to the question arising under KRS 61.870 to KRS 61.884. Simply stated, that question is: Does the public agency have the document in its possession at the time the request is submitted? OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-220; 93-ORD-51.
As noted above, at the time of Ms. Matherly's request, the School District advised that the report had not yet been completed and thus, there existed no record to provide her. Accordingly, we find no violation of the Open Records Act, in this regard. 93-ORD-55.
On May 8, 2007, the School District timely responded to Ms. Matherly advising her that the requested information would be provided to her by May 25, 2007. However, this response was deficient in that it did not provide a detailed explanation for the delay. KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
In construing this provision, the Attorney General has observed:
Unless the requested record is "in active use, in storage or not otherwise available," the agency has only three business days to reach a determination on disclosure of public records and to notify the requester of its final decision. If a period of time greater than three business days is required, the agency must give "a detailed explanation of the cause . . . for further delay" and state "the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.872(5). Failure to comply with these provisions constitutes a violation of the Open Records Act.
99-ORD-13, p. 5, 6. The May 8, 2007, response failed to provide a detailed explanation for the delay in providing the records, as required by KRS 61.872(5).
The School District's May 11, 2007, supplemental response complied with KRS 61.872(5) by explaining that the record was otherwise unavailable because it had not yet been completed and the delay in completing was due to health issues of the individual materially involved with creating the survey results. Ms. Matherly was further advised the record would be available during usual business hours at the School District's central offices at least by May 25, 2007.
However, we find that the School District's requirement that Ms. Matherly submit her request on its specified form, when her initial request letter met the requirements of KRS 61.872(2), constituted a procedural violation of the Open Records Act.
This office has held that "[a] public agency cannot demand or require more in regard to a request to inspect public records than is required by KRS 61.872(2)," 94-ORD-101, p. 2. That statute provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
At page 2 of 94-ORD-101, the Attorney General recognized:
The public agency may require, if it desires to do so, that a request or application be in writing. If a written request or application is required, the statute is satisfied if the written application whether or not submitted on the public agency's form contains the following:
1. Applicant's signature.
2. Applicant's name printed legibly.
3. Description of records to be inspected.
This position echoed an early open records opinion in which the Attorney General stated that "[p]ublic agencies may put into their regulations the requirement for written application but we believe it is contrary to the letter and spirit of the open records law for an agency to make it more difficult to inspect a public record than it was before the open records law was enacted." OAG 76-588, p. 2; see also 95-ORD-60 and 95-ORD-33. Inasmuch as the requester's purpose in seeking access to public records is irrelevant, and KRS 61.872(2) narrowly restricts what information a public agency may require from the requester, this office has consistently disapproved the required use of preprinted forms requesting additional information. See 03-ORD-086, citing OAG 76-588 and 95-ORD-33.
Moreover, at page 3 of 94-ORD-101, the Attorney General observed:
While the public agency may require a written application, as opposed to an oral request, there is nothing in the statute which authorizes a public agency to reject a request simply because the requestor did not use the specific form devised by the public agency. A particular form may be desired or suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records.
Ms. Matherly's initial letter of request contained her signature and her name was printed legibly and the School District acknowledged that her letter provided a sufficient description of the information she was seeking. Her initial request letter, thus, conformed to the requirements of KRS 61.872(2). Under these circumstances, the School District was obligated to treat the initial letter as it would a request submitted on its specified form and timely respond within three business days of its receipt. The School District's requirement that Ms. Matherly submit her request on its specified form, when her initial request letter met the requirements of KRS 61.872(2), constituted a procedural violation of the Open Records Act. 03-ORD-086; 94-ORD-101.
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.